[Note: this is an early draft of the second section of a paper I’m working on titled ‘Who Gives a Tweet about Privacy’ and builds from an earlier posted section titled ‘Privacy, Dignity, Copyright and Twitter‘ Other sections will follow as I draft them.]
Towards a Statutory Notion of Privacy
Whereas Warren and Brandeis explicitly built a tort claim to privacy (and can be read as implicitly laying the groundwork for a right to privacy), theorists such as Alan Westin attempt to justify a claim to privacy that would operate as the bedrock for a right to privacy. Spiros Simitis recognizes this claim, but argues that privacy should be read as both an individual and a social issue. The question that arises is whether or not these writers’ respective understandings of privacy capture the normative expectations of speaking in a public space, such as Twitter; do their understandings of intrusion/data capture recognize the complexities of speaking in public spaces and provide a reasonable expectation of privacy that reflects people’s interests to keep private some, but not all, of the discussions they have in public?
There has been a sustained argument across the ‘net and in traditional circles, that privacy is being redefined before our very eyes. Oftentimes, we see how a word transforms by studying its etymology – this is helpful in understanding the basis of the words that we utter. What do we do, however, when we work to redefine not just a word’s definition (such as what the term ‘cool’ refers to) but its normative horizons?
In redefining the work ‘privacy’ to account for how people are empirically protecting their privacy, are we redefining the word, or the normative horizon that it captures? Moreover, can we genuinely assume that the term’s normative guide is changing simply because of recent rapid changes in technology increase the difficulty in exercising our right to privacy in digitized environments? To argue that these normative boundaries are shifting largely because of how digital networks have been programmed presupposes that the networks cannot be designed in any other way, that digital content will flow as it does now the same way that gravity acts on our physical bodies as it presently does. The difficulty in maintaining such an analogy is that it assumes that there are natural laws to an immanent programming languages that structure how we can participate in digital environments.