Four Privacy Stories and Two Hard Cases, a Comment on Skinner-Thompson's Privacy at the Margins

Authors

Jessica Silbey, Boston University School of LawFollow

Document Type

Article

Publication Date

Summer 2022

ISSN

0742-7115

Publisher

University of Minnesota Law School

Language

en-US

Abstract

Scott Skinner-Thompson's new book, Privacy at the Margins, is what I would call a "fourth-generation" study of privacy law. Privacy's contours and justifications have been debated over the course of the twentieth century, first to establish it as a matter deserving legal protection (roughly the first half of the twentieth century), ² then to iterate its various common law and constitutional variations (starting in the 1960s), ³ and since the computer and internet revolution of the 1990s, to reevaluate privacy's growing importance but waning presence in the digitally-networked age.⁴ The third-generation of privacy scholarship has been a fast-growing area in the past two decades, combining the study of tort-based privacy scholarship with information and data privacy concerns endemic in the internet age. And it set the stage for a fourth-generation of privacy scholarship, which considers the intersection of privacy law and equality along the dimensions of gender, race, sexual orientation, and economic class.⁵

As an example of third-generation privacy scholarship on which Scott-Skinner Thompson's book builds, consider the recently published Why Privacy Matters, by Neil Richards. Richards begins his new book with the sentence "Privacy is dead." ⁶ This is a set-up, because, as the book's title indicates, Richards argues forcefully that privacy matters a lot. Privacy promotes identity formation, intellectual freedom and democracy, and it protects us as consumers and employees in the lopsided "power asymmetries caused by the industrial econom[ies]" of the twentieth and twenty-first centuries.' Despite starting the book with a false prophecy, Richards gets to the truth and the brunt of his argument when he writes in the first sentence of Part 1 ("How to Think About Privacy") that "Privacy is everywhere you look."' Richards, a leading scholar in privacy law and regulation, demonstrates in this set-up and straight-forward reveal the conflicting and complex narratives of privacy in contemporary culture that make it both a ubiquitous and contentious subject of study and conversation.

Recommended Citation

Jessica Silbey, Four Privacy Stories and Two Hard Cases, a Comment on Skinner-Thompson's Privacy at the Margins , in 37 Constitutional Commentary 221 (2022).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3034