In response 'Privacy Law: Positive Theory and Normative Practice' by Anita L Allen in (2013) 126 Harvard Law Review Forum 241 comments
Professor Lior Strahilevitz’s article Toward a Positive Theory of Privacy Law urges novel positive approaches to privacy law scholarship. Positive theories of law employ empirical and analytical me- thods to describe what the law is, how it came to be, and what its consequences may be. Grounded in median voter models and public choice theory generally, Strahilevitz’s article illustrates positive analysis, illuminating distributive implications of privacy statutes and common law privacy doctrines for a range of groups, including political elites, racial minorities, criminal offenders, naïve and sophisticated consumers, data miners, and marketers. The overall goals of this insightful article are to clarify the distributive “winners and losers” of privacy law and to shed light on the predictability of who prevails in the institutions that formulate privacy rules in the United States and in Europe.
By contrast to Strahilevitz’s positive project, my recent work on privacy law has been normative in thrust. Specifically, I have explored the normative ethical value of privacy, evaluated the normative ethics of privacy laws, and pondered the extent of normative ethical obligations to protect one’s own and others’ privacy. Though a normativist, I welcome greater attention to positive theory. Positive theory and normative theory go hand-in-hand, in my view. Normative theories of law evaluate and commend laws by reference to values that the laws embody or promote. Information management policies reflected in law are subject to evaluation by economists as efficient or inefficient, but by ethicists as right or wrong, good or bad, virtuous or vicious, and just or unjust.
We cannot know if we are doing the right thing, if we do not know what we are doing and whom we are doing it to. My work often attends to the winners of losers of privacy rules and practices — whether corporations, women, the LGBT community, criminals locked in prisons, African Americans, or children. Whether privacy is a good thing for the people who have it is a question with a large empirical dimension. For the sake of rigor and completeness, normative ethical theorizing must attend to subtle concrete distributional effects of the sort Strahilevitz examined. Attending with special care to distributive im- plications serves the needs of ethics, as it serves the needs of other normative enterprises of perhaps more immediate concern to Strahilevitz — welfare-enhancing cost-benefit policy analysis and commercial advantage-seeking. Understanding those that Strahilevitz terms the “winners and losers” of privacy law bears on the choices that persons of conscience, character, and goodwill make respecting the frequency, content, and context of data acquisition, data disclosure, and data retension.
Yet the truth about distributional effects may be subtle, unobserved, and disbelieved. Presumed winners may be losers, and the presumed losers may be winners. Presumptions about winners and losers may be so fixed in prejudice that no one bothers to challenge philosophical assumptions with fresh analytics or factual pieties with rigorously derived empirical data. I applaud Professor Strahilevitz’s illustrations of new ways to think empirically about privacy laws’ distributive effects.
Here, I briefly comment on his major arguments and examples. First, in Part I, I comment on his claims concerning the law of celebrity privacy, and I offer a challenge to his conception of winners and losers in that domain. Second, in Part II, I consider his argument that granular criminal-history disclosures may be the direction for the near future and may benefit African Americans more than criminal-history privacy. I suggest that privacy-reducing surveillance of African Americans may already be so extensive that African Americans would not view themselves as “winners” under a regime that placed detailed criminal-history data in the hands of employers. Third, in Part III, I address privacy concerns raised by Big Data, noting grounds for a concerned response to the data mining and consumer-profiling practices artfully described by Strahilevitz. Finally, in Part IV I respond to Strahilevitz’s celebratory response to the federal Do Not Call registry’s privacy implications with the observation that a benignly more paternalistic Do Not Call law could have made telephone customers even bigger winners. In sum, I embrace Strahilevitz’s call for nuanced positive theories of privacy law’s “winners and losers” but for a reason he does not highlight: better positive theory is critical also for better normative ethical theory. I reject his specific characterizations of “winners and losers” of the law of celebrity publicity and criminal-history disclosure, and I suggest policy directions for bigger wins for American shoppers and consumers.