Daniel Solove is garnering a lot of positive attention for an essay he published in the Chronicle of Higher Education to promote his new book.
It was republished in part here, here and here and no doubt other places as well.Â The thesis of the essay is that privacy is important even to people who have nothing to hide.Â I absolutely agree with this obvious point, as would everyone else with even the most superficial grasp of privacy law and policy. Asserting that privacy is valuable to everyone is like arguing that it would be great to cure cancer. It is hard to find anyone who reasonably disagrees.
Yet to make his essay seem more powerful, Solove apparently needed to make it seem as though someone was making the contrary argument that he was “debunking,” even if it required utter fabrication. Unfortunately for me, Iâ€™m the one he elected to smear and slander.
Early in his essay Solove writes: â€œCommentators often attempt to refute the nothing-to-hide argument by pointing to things people want to hide.â€ Which commentators? Iâ€™m the only person who gets named and I do no such thing. Here are the facts. In January of 2006, Solove published an article in the University of Pennsylvania Law Review entitled A Taxonomy of Privacy. The editors of the University of Pennsylvania Law Review invited me to a write a short essay responding to this article, which was published in the summer of 2006 and entitled A Feeling of Unease About Privacy Law. The exchange got a bit of scholarly attention, see e.g. this post at Larry Solum’s excellent blog.
In 2006, Solove understood exactly what I was saying in my review essay, as evidenced by this post at his blog where he wrote: “Bartowâ€™s primary criticism is that my taxonomy â€œframes privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.â€ Bartow claims that the taxonomy doesnâ€™t have â€œenough dead bodiesâ€ and that privacyâ€™s â€œlack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.”
In 2007 in this law review article Solove said:
One of the difficulties with the nothing to hide argument is that it looks for a visceral kind of injury as opposed to a structural one. Ironically, this underlying conception of injury is shared by both those advocating for greater privacy protections and those arguing in favor of the conflicting interests to privacy. For example, law professor Ann Bartow argues that I have failed to describe privacy harms in a compelling manner in my article, A Taxonomy of Privacy, where I provide a framework for understanding the manifold different privacy problems. Bartowâ€™s primary complaint is that my taxonomy â€œframes privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.â€ Bartow claims that the taxonomy does not have â€œenough dead bodiesâ€ and that privacyâ€™s â€œlack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.â€
I don’t think Solove was being particularly articulate there,Â but at least he represented my viewpoint mostly accurately, though in the review essay I neither advocate for greater privacy protections nor argue in favor of the conflicting interests to privacy. Yet five years later in his essay for The Chron, Solove writes:
Investigating the nothing-to-hide argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for greater privacy protections. For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must “negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” She says that privacy needs more “dead bodies,” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other [types of harm].”
Bartow’s objection is actually consistent with the nothing-to-hide argument. Those advancing the nothing-to-hide argument have in mind a particular kind of appalling privacy harm, one in which privacy is violated only when something deeply embarrassing or discrediting is revealed. Like Bartow, proponents of the nothing-to-hide argument demand a dead-bodies type of harm.
Bartow is certainly right that people respond much more strongly to blood and death than to more-abstract concerns. But if this is the standard to recognize a problem, then few privacy problems will be recognized. Privacy is not a horror movie, most privacy problems don’t result in dead bodies, and demanding evidence of palpable harms will be difficult in many cases.
Solove completely twists what I said, and distorts the context in which I said it. Here is the actual paragraph he pulled the first quotation from:
This essay responds to Daniel Soloveâ€™s recent article, A Taxonomy of Privacy.Â I have read many of Daniel Soloveâ€™s privacy-related writings, and he has made many important scholarly contributions to the field.Â As with his previous works about privacy and the law, it is an interesting and substantive piece of work.Â Where it falls short, in my estimation, is in failing to label and categorize the very real harms of privacy invasions in an adequately compelling manner.Â Most commentators agree that compromising a personâ€™s privacy will chill certain behaviors and change others,Â but a powerful list of the reasons Â why this is a negative phenomenon that the law should seek to prevent is not a significant attribute of Soloveâ€™s taxonomy.Â That omission left this reader a little concerned about the ultimate usefulness of the privacy framework that Solove has developed.Â To phrase it colloquially, in this authorâ€™s view, the Solove taxonomy of privacy suffers from too much doctrine, and not enough dead bodies.Â It frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.
It should be clear to the reader that my statements are not about privacy law or policy generally. They are criticisms very specifically and explicitly pitched at Soloveâ€™s A Taxonomy of Privacy. I didnâ€™t think the Solove taxonomy was inclusive enough and I said so. How can this possibly be â€consistent with the nothing-to-hide argumentâ€ to anyone with even basic reading comprehension skills?
The second and third quotations of mine that Solove deployed came from a paragraph at the very end of my review essay. Here are my actual, verifiable words:
Soloveâ€™sÂ A Taxonomy of Privacy is an interesting and worthwhile undertaking, but its lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.Â It relegates privacy violations to a very low place in the taxonomy of immediate and visceral public policy concerns, and foments a feeling of unease about the importance and future of privacy law.
Again, I think it is absolutely clear that I am criticizing Soloveâ€™s Taxonomy, period. No one could in good faith construe that as an argument that privacy doesnâ€™t matter if one has nothing to hide. I also make it clear in the essay I think privacy is crucial, writing near the end of the essay:
Solove consistently accords to violations of information privacy the default harm of feelings of unease and discomfort.Â Though he occasionally weaves some other negative consequences through his descriptions of his taxonomical categories, he devotes substantially more energy to explaining causality than he does to explaining impact.This renders the taxonomy incomplete and unsatisfactory. At the most superficial level, persuading observers to take privacy concerns seriously requires convincing them that people who are not engaging in illegal conduct are harmed in a significant, cognizable way when their personal information is collected and distributed against their will or without their knowledge.Â Toward this end, a more effective taxonomy would dramatically and thoroughly document the consequences of privacy violations in very visceral, dramatic ways.
There is no shortage of potentially gripping hypotheticals that could be developed.Â Â A perceived lack of medical privacy may lead people to avoid medical testing and treatment.Â An actual lack of medical privacy may cause people with particular health problems to be denied credit, employment, or housing.Â Real and immediate consequences of privacy violations could be cataloged along with descriptions of the violations themselves.
There are also plenty of real life examples.Â In Griswold v. Connecticut, the Supreme Court placed access to contraceptives within the rubric of a type of privacy that is not readily discerned within Soloveâ€™s taxonomy.Â However, recent practices by certain pharmacies demonstrate an attempt to dissuade women from utilizing certain forms of contraceptives such as the â€œmorning afterâ€ pill by requiring unnecessary and intrusive personal information from those seeking them. These acts situate reproductive freedom within the realm of information privacy concerns.
I think this illustrates exactly how powerfully important I consider privacy issues. Soloveâ€™s gross misstatements of what I wrote are deeply offense and come pretty close to defamation. Solove describes defamation as privacy tort he calls “distortion” at pages 546-58 of his Taxonomy of Privacy. Maybe he needs to re-read his own words as well as mine.