Nissenbaum the functionalist

by Sebastian Benthall

Today in Classics we discussed Helen Nissenbaum’s Privacy in Context.

Most striking to me is that Nissenbaum’s privacy framework, contextual integrity theory, depends critically on a functionalist sociological view. A context is defined by its information norms and violations of those norms are judged according to their (non)accordance with the purposes and values of the context. So, for example, the purposes of an educational institution determine what are appropriate information norms within it, and what departures from those norms constitute privacy violations.

I used to think teleology was dead in the sciences. But recently I learned that it is commonplace in biology and popular in ecology. Today I learned that what amounts to a State Philosopher in the U.S. (Nissenbaum’s framework has been more or less adopted by the FTC) maintains a teleological view of social institutions. Fascinating! Even more fascinating that this philosophy corresponds well enough to American law as to be informative of it.

From a “pure” philosophy perspective (which is I will admit simply a vice of mine), it’s interesting to contrast Nissenbaum with…oh, Horkheimer again. Nissenbaum sees ethical behavior (around privacy at least) as being behavior that is in accord with the purpose of ones context. Morality is given by the system. For Horkheimer, the problem is that the system’s purposes subsume the interests of the individual, who is alone the agent who is able to determine what is right and wrong. Horkheimer is a founder of a Frankfurt school, arguably the intellectual ancestor of progressivism. Nissenbaum grounds her work in Burke and her theory is admittedly conservative. Privacy is violated when people’s expectations of privacy are violated–this is coming from U.S. law–and that means people’s contextual expectations carry more weight than an individual’s free-minded beliefs.

The tension could be resolved when free individuals determine the purpose of the systems they participate in. Indeed, Nissenbaum quotes Burke in his approval of established conventions as being the result of accreted wisdom and rationale of past generations. The system is the way it is because it was chosen. (Or, perhaps, because it survived.)

Since Horkheimer’s objection to “the system” is that he believes instrumentality has run amok, thereby causing the system serve a purpose nobody intended for it, his view is not inconsistent with Nissenbaum’s. Nissenbaum, building on Dworkin, sees contextual legitimacy as depending on some kind of political legitimacy.

The crux of the problem is the question of what information norms comprise the context in which political legitimacy is formed, and what purpose does this context or system serve?