The Language-Game of Privacy

By Fairfield, Joshua A. T. | Michigan Law Review, April 2018 | Go to article overview

The Language-Game of Privacy


Fairfield, Joshua A. T., Michigan Law Review


THE LANGUAGE-GAME OF PRIVACY

PRIVACY REVISITED: A GLOBAL PERSPECTIVE ON THE RIGHT TO BE LEFT ALONE. By Ronald J. Krotoszyński, Jr. Oxford and New York: Oxford University Press. 2016. Pp. xx, 292. $90.

INTRODUCTION TO THE PROBLEM

Start with a thought experiment. Suppose someone asks you what the word "privacy" means. After thinking about it for a while, you realize you don't really know. You can do one of two things: you can go and ask people how they use the word privacy, or you can begin to internally construct your own definition. But because you don't know what privacy means, if you choose to construct your own definition, the only information that definition can contain is what you think privacy means. Worse: you may be aware that privacy could mean other things to some people, but those meanings don't fit the operational definition you're trying to reach here, and so you cut those meanings out, using the theorist's scalpel. Those things are not privacy, you argue, because they fall outside the very theoretical structure that you just built. But you soon realize your attempt to "pare down" language until it meets your exacting criteria entails literally putting words in others' mouths. You are claiming that what other people mean when they use the word "privacy" is precisely and only that which fits your theoretical structure. (You're also taking words out of their mouths: you're saying that when they use the word "privacy," they're often wrong.) And that's obviously not true. It's a dead-end street.

So instead you decide to take the richer path and find out how other people use the word privacy. You might read a few people's papers, most of them by privacy law scholars, and come to the conclusion that one of their definitions is the answer. But of course you wouldn't have found out what privacy means; you would have just gotten some data about what those scholars mean when they use the word privacy. There are more people in the world than Western privacy scholars trained in common law, and they use language too. Instead, it might be reasonable to ask how people use the term in daily life because the word privacy means exactly and only how people use it. In other words, meaning is use. In the grand debate about how the meaning of privacy should be explored, I fall into the "ask people" camp, whereas many thinkers about privacy, especially legal thinkers, fall into the "define it" camp.

The "define-ask" divide does not just exist in law.1 It exists in logic, philosophy, and mathematics, and thus lies at the root of the scientific method.2 This is not a distinction to do with the divide between empirical and theory work. Rather, it is a divide in empiricism itself. On both sides of the divide, people develop sensible hypotheses and then test them by comparison to theories of reality. The debate regards not whether we should test our conclusions, but which attribute of real experience should our hypothesis be tested against. In the case of privacy, should we test how person A uses the word "privacy" in any one instance against a core essential definition, or should we test the use of a word in one instance against how people actually use it?

One way to see this clearly is to observe the revolution that Ludwig Wittgenstein's theories worked in the social sciences. Traditionally, a scientist would develop a theory of reality, and would test whether results conformed with that theory. If the result was an outlier, then, that would point to a fault in the experiment or test. If it had lots of company, perhaps the theory would need revision. So before Wittgenstein, one could imagine (and this was the case)3 that some cultural anthropologists might arrogantly judge technologically undeveloped cultures, because those cultures' usages fell short of the best theories the anthropologist had. But Wittgenstein's point was that in examining language (and other constructed cultural artifacts), the empirical reality against which theories of linguistic meaning must be tested is the use of language itself. …

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