Ohm and Post: Privacy as threats, privacy as dignity

by Sebastian Benthall

I’m reading side by side two widely divergent law review articles about privacy.

One is Robert Post‘s “The Social Foundations of Privacy: Community and Self in Common Law Tort” (1989) (link)

The other is Paul Ohm‘s “Sensitive Information” (2014) (link)

They are very notably different. Post’s article diverges sharply from the intellectual millieu I’m used to. It starts with an exposition of Goffman’s view of the personal self as being constituted by ceremonies and rituals of human relationships. Privacy tort law is, in Post’s view, about repairing tears in the social fabric. The closest thing to this that I have ever encountered is Fingarette’s book on Confucianism.

Ohm’s article is much more recent and is in large part a reaction to the Snowden leaks. It’s an attempt to provide an account of privacy that can limit the problems associated with massive state (and corporate?) data collection. It attempts to provide a legally informed account of what information is sensitive, and then suggests that threat modeling strategies from computer security can be adapted to the privacy context. Privacy can be protected by identifying and mitigated privacy threats.

As I get deeper into the literature on Privacy by Design, and observe how privacy-related situations play out in the world and in my own life, I’m struck by the adaptability and indifference of the social world to shifting technological infrastructural conditions. A minority of scholars and journalists track major changes in it, but for the most part the social fabric adapts. Most people, probably necessarily, have no idea what the technological infrastructure is doing and don’t care to know. It can be coopted, or not, into social ritual.

If the swell of scholarship and other public activity on this topic was the result of surprising revelations or socially disruptive technological innovations, these same discomforts have also created an opportunity for the less technologically focused to reclaim spaces for purely social authority, based on all the classic ways that social power and significance play out.

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