Privacy, Vulnerability, and Affordance

Author(s): 
Publication Type: 
Academic Writing
Publication Date: 
October 24, 2017

INTRODUCTION

A person without privacy is vulnerable. But what is it to be vulnerable? And what role does privacy or privacy law play in vulnerability? This Article, prepared in connection with the 22nd Annual Clifford Symposium on Tort Law and Social Policy at the DePaul University College of Law, begins to unpack the complex, sometimes contradictory relationship between privacy and vulnerability. I begin by exploring how the law conceives of vulnerability—essentially, as a binary status meriting special consideration where present. Recent literature recognizes vulnerability not as a status but as a state—a dynamic and manipulable condition that everyone experiences to different degrees and at different times. I then discuss various ways in which vulnerability and privacy intersect. I introduce an analytic distinction between vulnerability rendering (i.e., making a person more vulnerable) and the exploitation of vulnerability, whether manufactured or native. I also describe the relationship between privacy and vulnerability as a vicious or virtuous circle. The more vulnerable a person is, the less privacy they tend to enjoy; meanwhile, a lack of privacy opens the door to greater vulnerability and exploitation. Privacy can protect against vulnerability, but it also can be invoked to engender it. I describe how privacy supports the creation and exploitation of vulnerability in literal, rhetorical, and conceptual ways. An abuser may literally use privacy to hide his abuse from law enforcement. A legislature or group may rhetorically invoke privacy to justify discrimination, for instance, against transgender individuals who wish to use the bathroom consistent with their gender identity,1 and courts conceptually obscure vulnerability when they decide a case * Assistant Professor, School of Law, Assistant Professor (by courtesy), Information School, University of Washington. The author would like to thank Stephan Landsman, Evan Selinger, Scott Skinner Thompson, the participants in the 22nd Annual Clifford Symposium on Tort Law and Social Policy, and the DePaul Law Review for helpful comments and edits. 1. These laws simultaneously compromise the privacy of transgender individuals. For an analysis, see generally Scott Skinner-Thompson, Outing Privacy, 110 NW. U. L. REV. 159 (2015). 591 \\jciprod01\productn\D\DPL\66-2\DPL207.txt unknown Seq: 2 8-JUN-17 12:46 592 DEPAUL LAW REVIEW [Vol. 66:591 on the basis of privacy instead of the value that is more centrally at stake. Finally, building on previous work, I offer James Gibson’s theory of affordances as a theoretical lens by which to analyze the complex relationship that privacy mediates. Privacy, when understood as an affordance, permits a more nuanced understanding of privacy and vulnerability and could perhaps lead to wiser privacy law and policy.

Recommended Citation
Ryan Calo, Privacy, Vulnerability, and Affordance, 66 DePaul L. Rev. (2017)

Available at: http://via.library.depaul.edu/law-review/vol66/iss2/11