A Global Definition of Privacy: More Harmful Than Helpful

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“Privacy” is acknowledged as “a fundamental human right in the U.N. Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional treaties.”[1] But, for all the weight and importance that the term “privacy” may generate, it has long been a challenging term to accurately define. Specifically, it has been laborious for global regulators to pinpoint precisely what constitutes “privacy” and link such a definition to a consequential “fundamental human right.”[2]

Challenges surrounding the creation of a workable definition of privacy are not new.  Sources indicate differing cultural significance behind the term has always been at the forefront of the struggle to encompass privacy in a singular definition. As elegantly noted by Helen Nissenbaum in her book Privacy in Context, privacy has been grappled with for so long because “attempts to define it have been morally controversial and have been accused of vagueness and internal inconsistency – of being overly inclusive, excessively narrow, or insufficiently distinct from other value concepts.”[3]James Q. Whitman in his article, The Two Western Cultures of Privacy: Dignity Verses Liberty, brings the struggle mentioned by Nissenbaum into the global sphere by correctly identifying that a universal definition of privacy “supposes human beings have a direct, intuitive grasp of right and wrong – an intuitive grasp that can guide us in our ordinary ethical decision making.”[4] Although many can agree that some form of privacy violation is not ideal, what constitutes a privacy “intrusion” is not “shared by all human beings.”[5]

Therefore, the primary challenge surrounding the definition of privacy stems from cross-cultural notions of privacy. Better said, “the sense of what must be kept ‘private,’ of what must be hidden before the eyes of others, seems to differ strangely from society to society.”[6] To understand why “intuitions” surrounding privacy may differ, it is crucial to acknowledge that various cultures emphasize different values or norms in society through the process of socialization. Socialization is defined as a way “through which people develop culturally patterned understandings, behaviors, values, and emotional orientations.”[7] Social values, in turn, create the legal rules and institutions that govern society. This principal can be summarized through the term “juridified intuitions,” which refers to “intuitions that reflect our knowledge of, and commitment to, the basic legal values of our culture.”[8]  Thus, privacy can be described as a very “localized” experience in the sense that “it is the product of local social anxieties and local ideals.”[9] While in the United States, “local anxieties” surrounding privacy focus primarily on protection from authority (police, government), in Europe, such anxieties are composed of the protection and guarantee of personal honor, respect, and dignity.[10]Localized anxieties (or socialized cultural norms/values) are accurately reflected in a respective country’s legal values.

Recent research conducted at Columbia Business School provides some insight into how global regulators can effectively impact the sphere of internet privacy despite differing notions of which privacy protections are most necessary. Studies were conducted across the scope of 38 countries, with a total of 534 participants, and four separate privacy concerns were surveyed among the group: (1) collection; (2) unauthorized secondary use; (3) improper access; and (4) errors.[11] Findings indicate that the more familiarity an individual has with removal procedures, the lower their level of concern and discomfort surrounding privacy infringement becomes.[12] To increase levels of trust, online companies need to “increasingly customize their information collection and management strategies to match the privacy concerns of consumers in different regions.[13] Consequently, it has been suggested that the best strategy for regulators may be through consumer education and empowerment as opposed to universal regulation.[14] The limits to this research should be noted, as internet experience in itself is a rather restrictive category; access to and use of internet technology differs vastly across the globe, and it is essential not to pigeonhole privacy regulation to solely be defined by the use of advanced technology.

The complexity and challenge surrounding a universal definition of privacy presents a unique but obvious problem. The cultural meaning behind privacy makes many prior definitions either too broad, too narrow, or just inapplicable. Regulators need to get more creative in their search for a universal solution. Perhaps a universal definition cannot be created, but a universal plan to empower individuals, across all cultures, through the knowledge of self-employed privacy tools is a possibility. Global regulators need to acknowledge that privacy gets at a deeper issue – it speaks to the fundamental rights and values that each society independently experiences and is shaped by. In the realm of privacy, difference is inevitable. It is time that regulators embrace such varieties of privacy and meet the issue of global regulation with a more creative and innovative approach that is both inclusive and applicable to all.

[1] GLOB. INTERNET LIBERTY COMPAIGN, Privacy and Human Rights: An International Survey of Privacy Laws and Practice, http://gilc.org/privacy/survey/intro.html (last visited Sep. 25, 2021).

[2] James Q. Whitman, The Two Western Cultures of Privacy: Dignity Verses Liberty, 133 YALE L.J. 1151, 1151, (2003-4).

[3] Helen Nissenbaum, Privacy in Context 2 (2009).

[4] Whitman, supra note 2 at 1154.

[5] Id. at 1155.

[6] Id. at 1153.

[7] Socialization, OXFORD BIBLOIOGRAPHIES, https://www.oxfordbibliographies.com/view/document/obo-9780199766567/obo-9780199766567-0133.xml (last visited Oct. 1, 2021).

[8] Whitman, supra note 2 at 1160.

[9] Id. at 1119.

[10] Id. at 1120.

[11] Steven Bellman et al., International Differences in Information Privacy Concerns: A Global Survey of Consumers, COLUMBIA BUSINESS SCHOOL,  https://www8.gsb.columbia.edu/sites/decisionsciences/files/files/1172.pdf.  

[12] Id.

[13] Id.

[14] Id.