By Ryan Calo (University of Washington – School of Law; Stanford University – Law School; Yale Law School), 8/9/16. DL here.
This essay, prepared in connection to the Clifford Symposium 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 — due to poverty, for instance — 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 can also be invoked to engender it. I next describe how privacy supports the creation and exploitation of vulnerability in ways literal, rhetorical, and conceptual. An abuser may literally use privacy to hide his abuse from law enforcement. A legislature or group may invoke privacy rhetorically to justify discrimination, for instance, against the transgendered who wish to use the bathroom of their choice. And courts obscure vulnerability conceptually when they decide a case 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 understood as an affordance permits a more nuanced understanding of privacy and vulnerability and could perhaps lead to wiser privacy law and policy.