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    Law Article: Julie Cohen: What Privacy Is For

    In a forthcoming law review article, “What Privacy Is For” (Nov. 20, 2012 draft), Georgetown Law professor Julie Cohen discusses “the consequences of privacy’s bad reputation” and seeks to create a better definition of the term. Here’s an excerpt:

    Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection for the liberal self. So characterized, however, privacy is reactive and ultimately inessential. Its absence may at times chill the exercise of constitutionally protected liberties, but because the liberal self inherently possesses the capacity for autonomous choice and self- determination, loss of privacy does not vitiate that capacity. As this Essay will explain, however, such thinking is mistaken.

    In fact, the liberal self who is the subject of privacy theory and privacy policymaking does not exist. As Part II explains, the self who is the real subject of privacy law- and policy-making is socially constructed, emerging gradually from a preexisting cultural and relational substrate. For this self, privacy performs a function that has nothing to do with stasis. Privacy shelters dynamic, emergent subjectivity from the efforts of commercial and government actors to render individuals and communities fixed, transparent, and predictable. It protects the situated practices of boundary management through which the capacity for self-determination develops.

    So described, privacy is anything but old-fashioned, and trading it away creates two kinds of large systemic risk, which Parts III and IV discuss. Privacy incursions can be episodic or systematic, but systematic deprivations of privacy also facilitate episodic privacy incursions. In this Essay, therefore, I will focus on the interplay between privacy and systems of surveillance. I will argue that freedom from surveillance, whether public or private, is foundational to the practice of informed and reflective citizenship. Privacy therefore is an indispensable structural feature of liberal democratic political systems. Freedom from surveillance also is foundational to the capacity for innovation, and so the perception of privacy as anti-innovation is a non sequitur. Innovation occurs in commercial and social contexts and is infused with particular commercial and social values; in particular, a commercial culture that sees privacy as threatening particular practices of knowledge production will register privacy regulation as a threat. But a society that values innovation ignores privacy at its peril, for privacy also shelters the processes of play and experimentation from which innovation emerges. In short, privacy incursions harm individuals, but not only individuals. Privacy incursions in the name of progress, innovation, and ordered liberty jeopardize the continuing vitality of the political and intellectual culture that we say we value.

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