Nissenbaum, Helen. Privacy in Context: Technology, Policy, and the Integrity of Social Life
(Stanford Law Books). Stanford University Press, 2010. Kindle Edition.
The Thesis
----------
What people care most about is not simply restricting the flow of information but ensuring that it flows appropriately, and an account of appropriate flow is given here through the framework of contextual integrity.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 184-186). Stanford University Press - A. Kindle Edition.
----------
WE HAVE A RIGHT TO PRIVACY, BUT IT IS NEITHER A RIGHT TO control personal information nor a right to have access to this information restricted.
Instead, it is a right to live in a world in which our expectations about the flow of personal information are, for the most part, met;
expectations that are shaped not only by force of habit and convention but a general confidence in the mutual support these flows accord to key organizing principles of social life, including moral and political ones.
This is the right I have called contextual integrity (CI), achieved through the harmonious balance of social rules, or norms, with both local and general values, ends, and purposes.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 4385-4389). Stanford University Press - A. Kindle Edition.
---------
It should be clear that the doctrine of “reasonable expectation of privacy,” which has usefully served to adjudicate privacy disputes in countless court cases and policy-making settings, is conceptually closely allied to contextual integrity.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 4418-4420). Stanford University Press - A. Kindle Edition.
----------
Contextual Integrity (CI) has a prescriptive as well as a descriptive facet
----------
Context-relative informational norms function descriptively when they express entrenched expectations governing the flows of personal information, but they are also a key vehicle for elaborating the prescriptive (or normative) component of the framework of contextual integrity.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2499-2500). Stanford University Press - A. Kindle Edition.
----------
The approach I recommend here is to compare entrenched normative practices against novel alternatives or competing practices on the basis of how effective each is in supporting, achieving, or promoting relevant contextual values.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 3190-3192). Stanford University Press - A. Kindle Edition.
----------
For example
----------
The requirement that physicians inform public health officials in cases of specific diseases is flagged as an instance of a departure from absolute patient confidentiality. Upon further evaluation this departure seems acceptable not because of a general trade-off of patients’ interests against those of others, but because it supports values of the healthcare context.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 3323-3325). Stanford University Press - A. Kindle Edition.
- and -
----------
Electoral voting context: Attempts to interject such new technologies, to improve the process, have shown how past practices, now entrenched, have achieved a delicate balance. Albeit imperfectly, these practices have more or less succeeded in maintaining utmost confidentiality for individual voters while maintaining reliability and accountability, and achieving an accurate count while protecting voters against coercion and (the harm of) retaliation.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 3384-3387). Stanford University Press - A. Kindle Edition.
----------
The analytical framework
----------
Contexts are structured social settings characterized by
- activities,
- roles, relationships, power structures,
- norms (or rules), and
- internal values (goals, ends, purposes).
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2551-2552). Stanford University Press - A. Kindle Edition.
----------
Roles: Teachers, physicians, lawyers, store managers, students, principals, congregants, rabbis, voters, cashiers, consumers, receptionists, journalists, waiters, patients, and clients are among some of the most familiar roles.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2565-2566). Stanford University Press - A. Kindle Edition.
----------
Activities: Examples include browsing goods in a store, singing hymns in church, completing homework assignments, lecturing in a classroom, conducting and undergoing physical examinations, writing reports, entering a vote at a polling station, and interviewing job applicants.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2567-2569). Stanford University Press - A. Kindle Edition.
----------
Norms: Norms define the duties, obligations, prerogatives, and privileges associated with particular roles, as well as acceptable and unacceptable behaviors.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2578-2579). Stanford University Press - A. Kindle Edition.
----------
Values: sometimes more aptly called goals, purposes, or ends; that is, the objectives around which a context is oriented,
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2580-2581). Stanford University Press - A. Kindle Edition.
----------
the central point is that contextual roles, activities, practices, and norms make sense largely in relation to contextual teleology, including goals, purposes, and ends.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2591-2592). Stanford University Press - A. Kindle Edition.
----------
For example
----------
Certain contexts are articulated in great detail, for example, voting stations, courtrooms, and highly ritualized settings such as church services.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2606-2607). Stanford University Press - A. Kindle Edition.
----------
The scope and definition of contextual integrity as a tool for assessing privacy issues
----------
Given the myriad norms that govern activities and practices within and across contexts, consider those that are specifically concerned with the flow of personal information -- transmission, communication, transfer, distribution, and dissemination -- from one party to another, or others.
Contextual integrity is defined in terms of informational norms: it is preserved when informational norms are respected and violated when informational norms are breached.
The framework of contextual integrity maintains that the indignation, protest, discomfit, and resistance to technology-based information systems and practices, as discussed in Part I, invariably can be traced to breaches of context-relative informational norms. Accordingly, contextual integrity is proposed as a benchmark for privacy.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2706-2713). Stanford University Press - A. Kindle Edition.
----------
More analytical framework and terminology
----------
informational norms regulate the flow of information of certain types about an information subject from one actor (acting in a particular capacity, or role) to another or others (acting in a particular capacity or role) according to particular transmission principles.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2717-2719). Stanford University Press - A. Kindle Edition.
----------
contexts are the backdrop for informational norms.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2720-2721). Stanford University Press - A. Kindle Edition.
----------
Informational norms have three placeholders for actors: senders of information, recipients of information, and information subjects.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2730-2731). Stanford University Press - A. Kindle Edition.
----------
Actors’ roles are among those critical variables that affect people’s rich and complex sensibilities over whether privacy has been violated or properly respected. Other attempts to articulate privacy principles go awry because they neglect or under-specify actors’ roles in explicating both policies and the problematic scenario under consideration.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2743-2745). Stanford University Press - A. Kindle Edition.
----------
The framework of contextual integrity incorporates attributes or type or nature of information (terms I will use interchangeably) as another key parameter in informational norms.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2764-2765). Stanford University Press - A. Kindle Edition.
----------
Informational norms render certain attributes appropriate or inappropriate in certain contexts, under certain conditions.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2770-2771). Stanford University Press - A. Kindle Edition.
----------
One need look no further than the endless forms we complete, the menus we select from, the shopping lists we compile, the genres of music we listen to, the movies we watch, the books we read, and the terms we submit to search engines to grasp how at ease we are with information types and attributes.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2788-2790). Stanford University Press - A. Kindle Edition.
----------
The transmission principle parameter in informational norms expresses terms and conditions under which such transfers ought (or ought not) to occur.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Location 2800). Stanford University Press - A. Kindle Edition.
----------
One of the most salient is confidentiality, stipulating that the party receiving information is prohibited from sharing it with others. Other familiar instances include
reciprocity, by which I mean a principle determining that information flows bidirectionally;
dessert, determining that an actor deserves to receive information;
entitlement (similar to dessert), determining that one party is entitled to know something;
compulsion, determining that one party (often, the information subject himself) is compelled or mandated to reveal information to another; and
need, determining that one party needs to know information of a particular kind.
A transmission principle might determine that information must be shared voluntarily, or consensually; it may require the knowledge of the subject (“notice”), or only her permission (“consent”), or both. Transmission principles may allow for commercial exchanges of information bought, sold, bartered, or leased in accordance with the rules of a competitive free market.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2802-2809). Stanford University Press - A. Kindle Edition.
----------
Using the CI framework to assess privacy concerns of proposed new practices
----------
I am interested in addressing the question of when and why some of these alterations in activities provoke legitimate anxiety, protest, and resistance.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2863-2864). Stanford University Press - A. Kindle Edition.
----------
Although there may, of course, be a host of ways in which novel practices alter the status quo, the framework of contextual integrity focuses our assessment on the key parameters of context, actors, attributes, and transmission principles.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2870-2872). Stanford University Press - A. Kindle Edition.
----------
Imagine these as juggling balls in the air, moving in sync: contexts, subjects, senders, receivers, information types, and transmission principles.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2811-2812). Stanford University Press - A. Kindle Edition.
----------
In order to ascertain what norms prevail, one must determine the prevailing social context.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2873-2874). Stanford University Press - A. Kindle Edition.
----------
Ascertain whether the new practice brings about changes in who receives information (recipient), whom the information is about (subject), or who transmits the information (sender).
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2880-2882). Stanford University Press - A. Kindle Edition.
----------
Ascertain whether the changes affect the types of information transmitted from senders to recipients.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2884-2885). Stanford University Press - A. Kindle Edition.
----------
New practices may entail a revision in the principles governing the transmission of information from one party to another.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2887-2888). Stanford University Press - A. Kindle Edition.
----------
Definition for the notion of a violation of conceptual integrity
----------
If the new practice generates changes in actors, attributes, or transmission principles, the practice is flagged a violating entrenched informational norms and constitutes a prima facie violation of contextual integrity.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 2890-2892). Stanford University Press - A. Kindle Edition.
----------
Problematic side of CI assessment as a test
----------
If conformity with pre-existing informational norms is a measure of contextual integrity, then any new practice that contravenes entrenched norms is flagged as problematic.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 3057-3058). Stanford University Press - A. Kindle Edition.
----------
Contextual integrity, as it has been described thus far, is inherently conservative, flagging as problematic any departure from entrenched practice.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 3096-3097). Stanford University Press - A. Kindle Edition.
----------
Resolution of the dilemma of CI as a test
----------
In recognition of this presumption, if a new practice breaches entrenched informational norms, I will say that there has been a prima facie violation of contextual integrity. At the same time, if a way can be found to demonstrate the moral superiority of new practices, this presumption could be overcome and what was recognized as a prima facie violation may be accepted as morally legitimate.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 3152-3155). Stanford University Press - A. Kindle Edition.
----------
Augmented Contextual Integrity Decision Heuristic
- Describe the new practice in terms of information flows.
- Identify the prevailing context. Establish context at a familiar level of generality (e.g., “health care”) and identify potential impacts from contexts nested within it, such as “teaching hospital.”
- Identify information subjects, senders, and recipients.
- Identify transmission principles.
- Locate applicable entrenched informational norms and identify significant points of departure.
- Prima facie assessment: There may be various ways a system or practice defies entrenched norms.
- Evaluation I: What might be the harms, the threats to autonomy and freedom? What might be the effects on power structures, implications for justice, fairness, equality, social hierarchy, democracy, and so on?
- Evaluation II: Ask how the system or practices directly impinge on values, goals, and ends of the context. In addition, consider the meaning or significance of moral and political factors in light of contextual values, ends, purposes, and goals.
- On the basis of these findings, contextual integrity recommends in favor of or against systems or practices under study.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 3481-3487). Stanford University Press - A. Kindle Edition.
----------
Additional Points
----------
Dangers associated with the aggregation and commercialization of information
“the transparent society,” in which we no longer fight the practices but work to ensure that all are watched and watching equally.
The problem is not that information is being gathered, hoarded, and disseminated, but that it is done so unevenly. Despite the liberating ring of this argument, it is misguided for two reasons, both having to do with a world in which power, as well as information, are unevenly distributed.
One, for which I will offer no further argument, is that information is a more effective tool in the hands of the strong than in those of the weak.
The other is that in a free market of personal information, characterized by omnibus providers, the needs of wealthy government actors and business enterprises are far more salient drivers of their information offerings, resulting in a playing field that is far from even.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 4022-4023). Stanford University Press - A. Kindle Edition.
----------
One of the most important contributions contextual integrity can make is to debunk the logic once and for all in the claim that information shared with anyone (any one) is, consequently, “up for grabs,” and because of this the activities of information middlemen, such as omnibus providers is, at worst, morally and politically no more problematic than those of the community gossip. What this reasoning fails to recognize is how critical it is to spell out the actual and potential recipients of information.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 4109-4112). Stanford University Press - A. Kindle Edition.
----------
I will assume that readers who have stayed with me to this point need no further convincing that “public” is not synonymous with “up for grabs,” that even if something occurs in a public space or is inscribed in a public record there may still be powerful moral reasons for constraining its flow.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 4133-4135). Stanford University Press - A. Kindle Edition.
----------
Comparison of US and EU privacy approaches
In comparative studies of U.S. privacy law and regulation with other countries, particularly those belonging to the European Union (EU), one key difference that seems generally accepted is that the U.S. approach is “sectoral,” while the EU’s is an “omnibus” approach.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 4504-4506). Stanford University Press - A. Kindle Edition.
----------
The framework of contextual integrity suggests that the U.S. approach to privacy legislation, generally disfavored by privacy advocates, may be the more promising one as, at its best, it embodies informational norms relevant to specific sectors, or contexts, in the law. For a credible commitment to privacy, this general approach would need just one “omnibus” principle: the right to contextual integrity from which the appropriate context-relative rights would be derived on a sector-by-sector basis.
Nissenbaum, Helen (2009-11-24). Privacy in Context: Technology, Policy, and the Integrity of Social Life (Stanford Law Books) (Kindle Locations 4513-4517). Stanford University Press - A. Kindle Edition.
----------