Privacy Dependencies

Privacy and Security

Article Snapshot

Author(s)

Solon Barocas and Karen Levy

Source

Washington Law Review, Vol. 95, pp. 555-616, 2020

Summary

One person’s privacy choices can affect the privacy of family, friends, and those of similar or different demographic characteristics. Current privacy rules do not recognize the social value of privacy.

Policy Relevance

Policymakers should protect the social value of privacy.

Main Points

  • People’s privacy often depends on the decisions and disclosures of others; an individual’s privacy can depend on social ties, one’s similarities to other people, and on one’s differences from other people.
     
  • In a tie-based privacy dependency, an observer learns about one individual through her social relationships with friends, family, or other associates.
     
  • In a similarity-based dependency, inferences about our unrevealed attributes are drawn from our similarities to others; however, the law forbids generalizations involving social characteristics that have served as the basis for systemic oppression in the past.
     
  • Difference-based dependencies arise when one person reveals something about herself that shows how she is different from others.
     
    • Police may obtain records from hundreds of devices in the vicinity of a crime, and then systematically rule out suspects from this set to identify the perpetrator.
       
    • This process of elimination leads to broad fishing expeditions for information that the Fourth Amendment was intended to limit.
       
  • Often, privacy relies on anonymity, but anonymity cannot be achieved alone, as it relies on what is known about others.
     
  • If only 2 percent of the population of the United States submits samples for genetic testing, about 90 percent of the European-descended population could be genetically linked by law enforcement to at least a third cousin; the decisions of a few determine the privacy outcomes for many.
     
  • The Genetic Information Nondiscrimination Act (GINA) bars employers or insurers from discriminating against individuals based on their genetic information.
     
    • GINA was intended to address similarity and tie-based dependencies.
       
    • One court ruled that it barred use of DNA to identify a perpetration of an offense on employer property.
       
    • This decision transformed GINA into a more robust protection for privacy.
       
  • Privacy dependencies call into question notice and choice as a model for privacy regulation; the informed consent of one individual fails to protect others implicated by his individual privacy choices.
     

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