Otherwise known as ‘problem-solving’, the pragmatism theory is relatively the youngest privacy theory. Its proponent is Solove. His postulation appeared for the first time in his renowned article ‘Conceptualizing Privacy’ (cited in several parts of this chapter) and later his book Understanding Privacy474 which heavily relies on the former and other articles: ‘The Virtues of Knowing Less: Justifying Privacy Protections against Disclosure’ and ‘Taxonomy of Privacy’.475
Before putting forward his theory, Solove makes a critical review of the existing theories of privacy which he collectively refers to them as ‘traditional accounts of privacy’ as opposed to his theory which he refers to it as A New Theory of Privacy.476 Solove’s criticisms of the traditional theories of privacy can be summarised in the following paragraph:-
‘More generally many existing theories of privacy view it as a unitary concept with a uniform value that is unvarying across different situations. I contend that with a few exceptions, traditional accounts of privacy seek to
468 Ibid.
469 Ibid, para 2.29.
470 Ibid, para 2.30.
471 Ibid, para 2.31.
472 Ibid.
473 Ibid.
474 Solove, D.J., Understanding Privacy, Harvard University Press, Cambridge-Massachusetts/London-England, 2008.
475 Ibid, p.x.
476 Ibid, p.8.
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conceptualize it in terms of necessary and sufficient conditions. In other words, most theorists attempt to define privacy by isolating a common denominator in all instances of privacy. I argue that the attempt to locate the
“essential” or “core” characteristics of privacy has led to failure.’477
Furthermore, Solove faults the traditional theories of privacy for being abstractive.478 He contends that privacy cannot be conceptualised by searching for a common denominator or essence of privacy.479 In contrast, he suggests conceptualising privacy in terms of Ludwig Wittgenstein’s notion of ‘family resemblances’.480 The latter notion simply means that certain concepts might not share one common characteristic, but might form ‘a complicated network of similarities overlapping and criss-crossing.481 Accordingly, Solove advocates a bottom-up approach instead of a top-down to conceptualising privacy. The bottom-up approach, according to Solove, entails conceptualising privacy based on context-specific situations i.e. examining privacy violations as disruptions of particular practices: interference with peace of mind, intrusion on solitude, or loss of control over facts about oneself.482 Solove also argues that the value of privacy is also context-specific, in contrast to theories that try to establish an overreaching value of privacy such as protecting dignity or intimacy.483 Solove views that the value of privacy in particular contexts depends on the purposes of the practices involved, and the importance of those purposes.484 He argues that privacy should be valued instrumentally as a means of achieving other valuable ends.485 Reverting to his context-specific approach, he observes that ‘the landscape of privacy is constantly changing’, particularly as a result of technological developments, and that scholars and judges may be led astray by trying to fit new problems into old conceptions.486 He remarks:-
‘We should seek to understand the special circumstances of a particular problem. What practices are being disrupted? In what ways does the
477 Solove, pp. 1090-1091, note 384, supra.
478 Ibid, p.1095.
479 Ibid, pp.1092-1093, 1096, 1098,1099,1126,1154.
480 Ibid, p.1126.
481 Ibid.
482 Ibid, p.1130.
483 Ibid, p.1143.
484 Ibid, p.1144-1146.
485 Ibid.
486 Ibid, p.1146.
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disruption resemble or differ from other forms of disruption? How does this disruption affect society and social structure?’487
Solove’s A New Theory of Privacy has faced several objections. First, it still allows for large amounts of subjectivity.488 This is because; society must determine in this problem-based approach what rights privacy trump and which rights trump privacy.489 Thus coming to a general consensus about the value of privacy compared to other rights in varying situations seems almost impossible; this is because no person holds rights in the same ideological hierarchy.490 Second, Solove overlooks that at some point someone, most likely the legislature, will have to decide where privacy falls among various rights.491 Privacy issues looked at through the problem-based approach will be helpful to legislatures tackling this problem but will not be complete; the legislature must rely on some abstract omniscient definition of ‘privacy’ before the problem-based application can begin.492 Thus if one attempts to divorce the exercise of ‘understanding privacy’ from any theory of rights, inevitably, he or she is likely to end right back in the same
‘conceptual jungle’ he or she were in before.493 More so, Solove’s call to abandon from the traditional theories of privacy is a total misdirection because it attempts to close down the privacy debates which, he himself acknowledges that technological advancement is changing the ways we should look into privacy issues. Third, Solove’s theory fails to provide basis for establishing why some harms are privacy violations and others are not.494 Fourth, the pragmatism theory is in fact a way of conceptualising privacy violations rather than privacy itself.495 Solove’s focus on harms in the form of disruption of specific practices lends itself well to a legal and policy analysis based on the prevention or remedying of harms.496
487 Ibid, p.1147.
488 Foye, S., ‘Book Review on Understanding Privacy by Daniel J.Solove’, Journal of High Technology Law, 2008-2009, p.4, http://www.law.suffolk.edu/highlights/stuorgs/jhtl/book_reviews/2008_2009/Foye.pdf,
last visited 20/11/2011.
489 Ibid.
490 Ibid.
491 Ibid.
492 Ibid.
493 Thierer, A., ‘Book Review: Solove’s Understanding Privacy’, The Technology Liberation Front, 2008, p.3, http://techliberation.com/2008/11/08/book-review-soloves-understanding-privacy/ last visited 20/11/2011.
494New Zealand’s Law Commission, p.41, para 2.37, note 409, supra.
495 Ibid, para 2.38.
496 Ibid.
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Despite the above objections, Solove’s theory of privacy and especially his book Understanding Privacy has been credited for providing a deep understanding of the importance of privacy and the erosion of privacy that is currently taking place.497