Lisa Austin, ‘Enough About Me: Why Privacy is About Power, Not Consent (or Harm)’

Most contemporary approaches to privacy regulation, including comprehensive privacy legislation, are based upon Fair Information Practices. Solove has called this the “privacy self-management model” because a central concern is to give individuals control and choice with respect to the collection, use and disclosure of their personal information. In this paper, I argue that despite many of the perceived advantages of this model, it is deeply flawed. I suggest an alternative view, based upon ideas of power rather than consent or harm.

Recent scholarship has pointed to some of the problems surrounding the ability of individuals to make rational choices regarding their information. However, I argue here that the problem is more deeply structural. The promise of the self-management model is that it regulates “personal information” rather than “private information”. Instead of defining what is private, we leave it up to the individual to decide. The advantage is that we do not have rely upon ideas of informational privacy that are often rooted in notions of the harms involved in disclosure of intimate and sensitive information, and seem unsuited to deal with contemporary information practices. Despite this advantage, I argue that the self-management model necessarily falls back on some other idea of informational privacy when operationalized in legislation and in doing so undercuts its ability to deal with current privacy problems …

Austin, Lisa M, Enough About Me: Why Privacy is About Power, Not Consent (or Harm) (January 1, 2014). Forthcoming in Austin Sarat, ed, A World Without Privacy?: What Can/Should Law Do.

First posted 2014-11-17 16:50:51

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