Structural Rights in Privacy

Julie E. Cohen

Julie E. Cohen, Structural Rights in Privacy, University of Chicago Law Review, 75(1), 2008.

This essay considers the relationship between privacy and visibility in the networked information age. Visibility is an important determinant of harm to privacy, but a persistent tendency to conceptualize privacy harms and expectations in terms of visibility has created two problems. First, focusing on visibility diminishes the salience and obscures the operation of nonvisual mechanisms designed to render individual identity, behavior, and preferences transparent to third parties. The metaphoric mapping to visibility suggests that surveillance is simply passive observation, rather than the active production of categories, narratives, and, norms. Second, even a broader conception of privacy harms as a function of informational transparency is incomplete. Privacy has a spatial dimension as well as an informational dimension. The spatial dimension of the privacy interest, which I characterize as an interest in avoiding or selectively limiting exposure, concerns the structure of experienced space. It is not negated by the fact that people in public spaces expect to be visible to others present in those spaces, and it encompasses both the arrangement of physical spaces and the design of networked communications technologies. U.S. privacy law and theory currently do not recognize this interest at all. This essay argues that they should.


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