INTRODUCTION
This article explores the requirement to outline privacy that has obstructed our ability to safeguard it in law. The means of “privacy” is notorious sly onerous to pin down. This text proves that the matter isn’t with the word “privacy,” however with the act of attempting to pin it down. The matter lies with the act of definition itself and is especially acute once the question words have deep-rooted and long common-language meanings, like liberty, freedom, dignity, and positive privacy. If one desires to work out what words like these truly mean to people, a definition is not the only tool to use. The precise wrongs thanks to the act of understanding privacy are by supplying one’s definition; that’s unscientific.
Like Procrustes (a robber who killed his victims most cruelly and unusually), who strapped his victims to a bed and then either cropped their feet if they stuck out or stretched the person on a rack if they were too short, the lawyer’s area unit was specifically trained to stretch and cut words. As an example, the particular means of “privacy” may be explored through the tools of linguistics or anthropology than through the tool of legal definition. This text so recommends that lawyers ought to put aside the imperfect tool of definition and acquire the tool of analogy after they raise what words like privacy mean. This text asks why privacy has been unambiguously ironed by issues regarding supposed impreciseness. As an example, we tend to stop our rummaging around for “security” attributable to a supposed lack of definition of the word. If privacy should have a definition to be operationalized, it’ll stay moribund. And if privacy needs narrowing to be operationalized, any operationalization is handily slender.
“You keep using that word. I do not think it means what you think it means.”[1]Lawyers keep using the word “privacy” without actually using it in the correct context. This article explains the meaning of privacy.
THE PROBLEM OF PRIVACY DEFINITION
This article is primarily involved with the disconnect between the aspiration to outline privacy and every attempt’s poor results. This half frames the matter by quoting leading voices in privacy theory (“an individual has privacy in a situation if in that particular situation the individual is protected from intrusion, interference, and information access by others”). The literature assumes that there’s some special problem in processors capturing the essence of privacy. Privacy students typically plan to prune the means of privacy right down to associate essentialist definition or, at best, to make its overlapping and sometimes contradictory applications into a categorization of connected uses.[2] “Privacy is a concept in disarray,” begins “Daniel Solove’s A Taxonomy of Privacy”.[3] ‘Solove captures the problem of defining privacy to capture its essential meaning (i.e., what he accurately terms the “traditional method”):
“Under the normal technique, commencements of privacy area unit appraised by crucial their accuracy in apprehending what privacy is and by their rationality -whether they’re logical and consistent. Theorists typically examine whether or not a conception of privacy includes the items we tend to see non-public and excludes the items we tend to not…..”[4]
Taking the stress off of privacy definitions or essences will offer a replacement begin to privacy, one wherever communities area unit has given sensible tools to defend what they read to be their privacy interest but outlined. Privacy on purpose, as an example, succeeds best wherever it offers communities effective default protections. (Dumping the responsibility for privacy protection on people incorporates a long and storied history of not operating.)[5] Shifting the pragmatic focus far from privacy essentialism refocuses theory on doing one thing regarding privacy demands, instead of evaluating whether or not the demand is legitimate as a result of it meets some unremarkably accepted definition. Thus, whereas Woodrow Hartzog begins by noting “[p]rivacy is associate amorphous and elusive thought, that is shocking given its central role within the law and our daily lives,” he chopped off Neil Richards’s conception that its action or inaction in response to privacy demands that matters.[6] Hartzog pragmatically concludes, “My purpose is that it is important to target the precise ideas, problems, and rules of privacy instead of living accommodations on a broad notion of it. Privacy ought to be valued for its utility. “If the search around for the crux of privacy re-enters the planning oral communication, the soup is spoiled. Designers will claim that they defend privacy probe testing solely on a particular, unacknowledged definition of privacy and hold all alternative uses of the term to be illegitimate.
PRIVACY BEYOND MERE DEFINITION
The try and enclose words in a closed, logic of representation, whether a definition or a typology, creates problems of legal endogeneity, mistaking legal compliance for substantive protections, and mistaking the framework for the content. Yet these practices are honored folk traditions in our guild. A lawyer, by training, respects defined terms quite living language, not less, which is odd. In lifestyle, would you rather eat peas, or “peas”? Would you rather buy a leather jacket or a “leather” jacket? A lawyer who discovers that a term has been clearly defined by an authority has been trained to feel a way of relief, not scathing mistrust. In short, one of the major reasons that privacy has been mulcted for its lack of definition is that lawyers have played an outsized role in the search for privacy meanings. Lawyers are trained to look for definitions first and to trust defined terms over undefined ones. The definition is one of the primary language games of our guild, and our guild has been, for the foremost part, in charge. The matter with defining privacy is that lawyers have been playing our own definitional language game, not observing the utilization games of others.
Instead of telling people what privacy is, we’d ask them what it means to them or observe what they expect when they make and respond to privacy demands. The foremost time-tested way of doing this is to borrow tools from cultural anthropologists, who have long built interpretive interfaces between linguistic and cultural communities. The epistemology of social anthropology provides a distinct third way that is free of the preconceptions of both rational and empirical approaches. The task of understanding privacy seems to suit well within that methodology. And, since law as an entire is a constructed social reality, the methods of social anthropology ought to be a strong fit for legal scholars.
CONCLUSION
Privacy needs a definition sort of a butterfly needs a microwave. The question of what a requirement for privacy means is unanswerable without specification of task, context, and community of meaning. When those are specified, the meaning is known and acted upon. “Shut the damn door” is correctly understood to mean that the recipient of the message should shut the damn door. The failure to supply a widely accepted legal definition of privacy has absolutely nothing to do with the concept of privacy. Lawyers often use the incorrect tool for the job, not unlike playing soccer with hockey sticks. Privacy demands must be interpreted, not defined or categorized. The linguistic sub-games of definition and categorization are often useful, but only in specific and constrained circumstances that don’t generally obtain when one asks what a specific and contextualized demand for privacy means.
The concept that privacy must have a definition is an opportunity for lobbyists and lawyers. But giving up the power of definition does not conclude that lawyers or judges cannot find the meanings of privacy. “The relevant test is and has always been, how the context of privacy is used by people attempting to assist their privacy interests.”
Author(s) Name: Aadrika Malhotra (Guru Gobind Singh Indraprastha University)
References:
[1] Inigo Montoya, The Princess Bride (Act III Communications, 1987) at 00h:16m:28s.
[2] Daniel J. Solove, Understanding Privacy 9 (Harvard University Press, 2008).
[3] Id.
[4] Supra note 2 at 18.
[5] Hartzog Woodrow, Privacy’s Blueprint: The Battle to Control the Design of New Technologies (Harvard University Press, 2018).
[6] Neil M Richards, Four Privacy Myths 33 (Cambridge University Press, 2015).
