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126 Harv. L. Rev. 1904 (2012-2013)
What Privacy is For

handle is hein.journals/hlr126 and id is 1934 raw text is: WHAT PRIVACY IS FOR Julie E. Cohen* I. How PRIVACY GOT A BAD NAME FOR ITSELF Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst - antiprogressive, overly costly, and in- imical to the welfare of the body politic.1 Privacy advocates resist this framing but seem unable either to displace it or to articulate a compa- rably urgent description of privacy's importance. No single meme or formulation of privacy's purpose has emerged around which privacy advocacy might coalesce.2 Pleas to balance the harms of privacy in- vasion against the asserted gains lack visceral force. The consequences of privacy's bad reputation are predictable: when privacy and its purportedly outdated values must be balanced against the cutting-edge imperatives of national security, efficiency, and entrepreneurship, privacy comes up the loser.3 The list of priva- * Professor, Georgetown University Law Center. Thanks to Michael Birnhack, Deven Desai, Laura Donohue, Andrew Glickman, James Grimmelmann, Frank Pasquale, Daniel Solove, Valerie Steeves, participants in the Harvard Law Review Symposium on Privacy and Technology, and faculty workshop participants at Georgetown University Law Center for their helpful comments and provocations, and to Allegra Funsten and Kristina Goodwin for research assistance. 1 See, e.g., Balancing Privacy and Innovation: Does the President's Proposal Tip the Scale?: Hearing Before the Subcomm. on Commerce, Mfg. & Rade of the H. Comm. on Energy & Com- merce, 112th Cong. 13 (2012) (statement of Rep. Marsha Blackburn, Member, H. Comm. on Energy & Commerce) (preliminary transcript); STEWART A. BAKER, SKATING ON STILTS: WHY WE AREN'T STOPPING TOMORROW'S TERRORISM 309-20 (2010) (The right to privacy was born as a reactionary defense of the status quo, and so it remains. Id. at 312.); Heidi Reamer Anderson, The Mythical Right to Obscurity: A Pragmatic Defense of No Privacy in Public, 7 US: J.L. & POL'Y FOR INFO. SOC'Y 543, 549 (2012); Kent Walker, Where Everybody Knows Your Name: A Pragmatic Look at the Costs of Privacy and the Benefits of Information Exchange, 2000 STAN. TECH. L. REV. 1, 1; Fred H. Cate, Invasions of Privacy? We'll All Pay Cost if We Cut Free Flow of Information, BOS. GLOBE, Sept. 2, 2001, at D8; FTC Cautioned Against Heavy Privacy Rules, COMM. DAILY, Feb. 25, 2011, at 3; Jim Harper, It's Modern Rade: Web Users Get as Much as They Give, WALL ST. J., Aug. 7-8, 2010, at Wi; Lee Gomes, The Hidden Costs of Privacy, FORBES (May 20, 2009, 6:oo PM), http://www.forbes.com/forbes/2oog/o6o8/034-privacy-research -hidden-cost-of-privacy.html; Bobbie Johnson, Privacy No Longer a Social Norm, Says Facebook Founder, GUARDIAN (Jan. 10, 2010, 8:58 PM), http://www.guardian.co.uk/technology/2oIo/jan/II /facebook-privacy. 2 On the framing dilemmas that surround privacy advocacy, see COLIN J. BENNETT, THE PRIVACY ADVOCATES 2-21 (2008). 3 For a detailed exploration of this dynamic at work in legislative and policy debates about information privacy, communications privacy, and polygraph testing, see PRISCILLA M. REGAN, LEGISLATING PRIVACY: TECHNOLOGY, SOCIAL VALUES, AND PUBLIC POLICY (1995). For a description of the substantive incoherence of the balancing paradigm, see COLIN J. BENNETT & 1904

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