Distinguishing Privacy Law: A Critique of Privacy as Social Taxonomy

44 Pages Posted: 7 Feb 2023 Last revised: 21 Feb 2023

See all articles by María P. Angel

María P. Angel

University of Washington School of Law

Ryan Calo

University of Washington - School of Law; Stanford Law School Center for Internet and Society; Yale Law School Information Society Project

Date Written: February 3, 2023

Abstract

What distinguishes violations of privacy from other harms? This has proven a surprisingly difficult question to answer. For over a century, privacy law scholars labored to define the illusive concept of privacy. Then they gave up. Efforts at distinguishing privacy came to be superseded at the turn of the millennium by a new approach: a taxonomy of privacy problems grounded in social recognition. Privacy law became the field that simply studies whatever courts or scholars talk about as related to privacy.

And it worked. Decades into privacy as social taxonomy, the field has expanded to encompass a broad range of information-based harms - from consumer manipulation to algorithmic bias—generating many, rich insights. Yet the approach has come at a cost. This article diagnoses the pathologies of a field that has abandoned defining its core subject matter, and offers a research agenda for privacy in the aftermath of social recognition.

This critique is overdue: it is past time to think anew about exactly what work the concept of privacy is doing in a complex information environment, and why a given societal problem—from discrimination to misinformation - is worthy of study under a privacy framework. Only then can privacy scholars articulate what we are expert in and participate meaningfully in global policy discussions about how to govern information-based harms.

Keywords: privacy, privacy harm, taxonomy, algorithms

Suggested Citation

Angel, María P. and Calo, Ryan, Distinguishing Privacy Law: A Critique of Privacy as Social Taxonomy (February 3, 2023). 123 Columbia Law Review (forthcoming 2023), Available at SSRN: https://ssrn.com/abstract=4347191 or http://dx.doi.org/10.2139/ssrn.4347191

María P. Angel (Contact Author)

University of Washington School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States
2029135398 (Phone)

HOME PAGE: http://https://mariapaulaangelarango.academia.edu/

Ryan Calo

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

HOME PAGE: http://https://www.law.washington.edu/directory/profile.aspx?ID=713

Stanford Law School Center for Internet and Society ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Yale Law School Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

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