Philosophy of Law Spring 2018

Privacy Online


One of the chief claims in Helen Nissenbaum’s book, Privacy in Context, is that there is a dimension of privacy that is not captured by the other analyses we have read. She calls this privacy in public. The idea is that I can be out in public and yet the information about who I am and where I am going is effectively private. It’s privacy by anonymity. If you follow me or plant a tracking device on me, then this privacy is lost.

There is an analogy with the internet. When we use internet services, we are effectively leaving our private spaces and entering the spaces controlled by companies. In that way, using the internet is like being out in public. Where things are going wrong, she thinks, is that we think of ourselves as enjoying the privacy of anonymity online when we’re actually being tracked and followed.

That is one reason why people worry about the loss of privacy on the internet. It is also why the solutions proposed under the heading of transparency and consent fail to address the problem. We’re being tracked but don’t think of it that way. Various efforts to get us to consent or appreciate what is going on all fail: we don’t read the small print, don’t think it through, or need to use the services enough to sacrifice our privacy.

Our discussion

The problem that Nissenbaum notes is that there is a mismatch between how we think and reality. We think that our movements on the internet enjoy the privacy of anonymity when, in fact, they do not.

There are two possible ways of closing a mismatch: make reality conform more closely to the ways we think and make our thinking conform more to reality. The former, which Nissenbaum favors, would involve greater protection for privacy while the latter would not.

Ryan started us off by noting an advantage of banks tracking his “movements,” namely, they catch fraudulent behavior. The only way his bank knew that he didn’t order a hot tub in Singapore is that it knew where he lives and what his typical purchases are.

Niyati shared one interesting behavioral pattern: high school students temporarily change their names on Facebook to prevent college admissions offices from finding them. Once admissions season is over, they change back. I’m not sure that college admissions offices actually care. If they do, I wonder if Facebook sells them a service to circumvent the deception. All speculation on my part! The main point is that this shows that people are thinking about the privacy of their information and it suggests that, at least among the younger generation, the mismatch that bothers Nissenbaum might not be there.

Sophia introduced me to the “finsta,” a “fake” Instagram account that people use to share, um, real information with a select circle of friends. There is something new every year. To my ear, that suggests a similar level of thought and sophistication about internet privacy. (Apparently Instagram is trying to squash this practice.)

Adam expressed concern about the availability of this information to the state. He was particularly concerned about the fact that the courts that adjudicate cases involving privacy and internet searches are secret. Justin is worried about the potential for manipulation.

Autumn pointed out that we are concerned with who knows which facts about us. On its own, this is a familiar point. But she said that for a lot of things she is far more concerned about what her peers know than she is about what a big company or the government knows. That’s interesting. Often discussions of privacy assume that our concern for privacy is to keep information about ourselves away from those who are outside the circle of family and friends. But I think Autumn is right to say that we’re actually often most concerned with controlling how much personal information goes to those within the circle of family and friends. That’s a very interesting observation.

Main ideas

These are the main points you should know or have an opinion about from today’s class.

  1. Privacy in public.
  2. Nissenbaum’s contextual approach to regulating privacy online.


Nissenbaum, Helen. 2011. “A Contextual Approach to Privacy Online.” Daedalus 140 (4): 32–48.