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Review Essay — Helen Nissenbaum's Privacy in Context: Technology, Policy, and the Integrity of Social Life (2010)

Published online by Cambridge University Press:  06 March 2019


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Social media is a dominating force in modern social life as internet technology has taken hold of our cyber-driven society. Many scholars, as will be explored below, have articulated fears and enthusiasm about what can be interpreted as a reconfiguration of privacy in a culture mediated by technology. Scholarship ranges from those opposing new conception of privacy in favour of protecting rights in traditional private/public distinctions with privacy as a privilege worthy of proprietary protection to those reveling in opening floodgates for information to re-invent or even destroy any semblance of traditional distinctions of privacy. These poles become even more accentuated in light of fast-proliferating technology illustrated by popular social networking websites such as Facebook, Twitter, Foursquare etc. In the North-American debate, the privacy concerns connected with these developments are compounded further by the U. S. Supreme Court's recent decision, Nelson v. NASA, which involves the constitutional right of government to ask for employee's personal information in the context of national security and surveillance.

Copyright © 2011 by German Law Journal GbR 


1 See, Nissenbaum's discussion of Ruth Gavison's definition of privacy as a “measure of the access other have to you through information, attention, and physical proximity:” Helen Nissenbaum, Privacy in Context 68 (2009) [Nissenbaum]; philosopher, Jeffrey Reiman's definition of privacy as “the condition under which other people are deprived of access to either some information about you or some experience of you:” Id., 70; legal scholar, Anita Allen's definition of proprietary privacy as “control over name, likenesses and repositories of personal information:” Id., 71; Charles Fried “who suggested that privacy is a necessary condition for love, friendship and trust:” Id., 97.Google Scholar

2 See, Nissenbaum's discussion of social media website, Facebook and its founder, Mark Zuckerberg: Id., 61-2; and her reference to experts and non-experts today asserting categorically that “the youth of today do not care about privacy:” Id., 221.Google Scholar

3 See, FourSquare, available at: Scholar

4 U.S. Supreme Court case, NASA v. Nelson 562 US 2011 is considered one of “the first constitutional rights to information privacy cases in a generation;” see, Lior Strahilevitz, The Centenarian Who Wasn't, NASA v. Nelson, and the Constitutional Right to Information Privacy, University of Chicago Law School, Faculty Blog (23 September 2010), available at: Scholar

5 See, Helen Nissenbaum's New York University faculty biography, available at: Scholar

6 Solove has also commented on privacy rights in NASA v. Nelson in Daniel Solove, NASA v. Nelson: Is There a Constitutional Right to Information Privacy?, Concurring Opinions (9 March 2010), available at: Scholar

7 See, Solove, Daniel J., Understanding Privacy (Harvard University Press, 2008); Solove is a Professor of Law at George Washington University Law School who in this cited book provides an overview of surveillance, data mining, identity theft and other privacy related issues, available at: Scholar

8 See, Benkler, Yochai, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale University Press, 2006); Benkler is a Professor of Law at Yale Law School who discusses in this cited book the phenomenon of “social production in reshaping markets, while at the same time offering new opportunities to enhance individual freedom, cultural diversity, political discourse, and justice,” available at:; see also, electronic version of this book available at: For a review of the book, see James Brink, Book Review – Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006), 7 German Law Journal 853-862 (2006), available at Scholar

9 Ian Kerr is the Canada Research Chair in Ethics, Law and Technology at the University of Ottawa, Faculty of Law; see, Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society (Ian Kerr, Valerie Steeves, and Carole Lucock, eds., Oxford University Press, 2009); see also, electronic version of this book available at: Scholar

10 Nissenbaum (note 1), 21.Google Scholar

11 Id., 22.Google Scholar

12 Id., 25.Google Scholar

13 Id., 29.Google Scholar

14 Id., 64.Google Scholar

15 Id., 90.Google Scholar

16 See, generally, Habermas, Jürgen, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (1991).Google Scholar

17 Nissenbaum (note 1), 90.Google Scholar

18 Id., 92; see also, id., 99 for a discussion of U.S Supreme Court case, California v. Greenwood (1998) 486 U.S. 35 where persons have no reasonable expectation of privacy for personal garbage placed on a curbside can be the subject of government searches by virtue of being discarded in a public space.Google Scholar

19 Id., 100.Google Scholar

20 Id., 125.Google Scholar

21 Id., 126.Google Scholar

22 Id., 127.Google Scholar

23 Id., 129.Google Scholar

24 Id., 127.Google Scholar

25 The Gramm-Leach-Bliley Act (GLB) Pub.L. 106-102, 113 Stat. 1338, enacted November 12, 1999, also known as the Financial Services Modernization Act of 1999, sought among other matters, to redraw conditions under which financial institutions disclosed nonpublic personal information about consumers and resulted in law suits against the Federal Trade Commission (FTC) that its rules flowing from this legislation were unlawful and unconstitutional: Id., 100, 153156.Google Scholar

26 The Personal Information Protection and Electronic Documents Act (PIPEDA) 2000, c.5 is Canadian federal legislation relating to data privacy that governs how private-sector organizations collect, use, and disclose personal information in the course of commercial business. It influences many areas of privacy including the privacy of medical prescriptions and consumer trust in electronic commerce. The Act was also intended to reassure the European Union that Canadian privacy law was adequate to protect the personal information of European citizens. Since 2010, PIPEDA has been subject to a number of significant amendments regarding personal information and internet spam. For more legal information about PIPEDA, see Office of the Privacy Commissioner of Canada, available at: Scholar

27 Nissenbaum (note 1), 156-7.Google Scholar

28 Id., 158.Google Scholar

29 See, interview with Nissenbaum: Citron, Danielle, Bright Ideas: Helen Nissenbaum's Privacy in Context: Technology, Policy and the Integrity of Social Life, Concurring Opinions (18 January 2010), available at: Scholar

30 New Book – Privacy in Context, The New Transparency: Surveillance and Social Sorting, available at: <>..>Google Scholar

31 Nissenbaum (note 1), 187.Google Scholar

32 Id., backcover, 3.Google Scholar

33 Id., 68, 78, 92: Nissenbaum particularly focuses on a comparative analysis of the ideas of Ruth Gavison, Privacy and the Limits of the Law, 89 Yale Law Journal 421-471 (1980).Google Scholar

34 This term was originally coined by Mark Prensky, Digital Native, Digital Immigrants, 9(5) On the Horizon, (MCB University Press, October 2001), available at:,%20digital%20immigrants%20-%20partl.pdf; Prensky's ideas have expanded into an entire project on Youth & Media at the Berkman Center for Internet & Society at Harvard University, available at: Scholar

35 See, Orwell, George, Nineteen Eighty-Four (1949) that originally created the fictional character, “Big Brother,” an enigmatic dictator of a dystopian world surveilled by a paternalistic-governmental entity.Google Scholar

36 Michael Geist is the Canada Research Chair of Internet and E-commerce Law at the University of Ottawa and publishes a scholarly blog featuring commentary and analysis about recent developments in Canadian internet law, available at: Scholar

37 Citizen Media Law Project, available at: <; Berkman Center for Internet & Society at Harvard University, available at: Scholar

38 University of Oxford's Programme in Comparative Media Law & Policy (PCMLP), available at:; PCMLP is affiliated with the University of Oxford's Centre for Socio-Legal Studies, available at: Scholar

39 Osgoode Hall Law School's Intellectual Property Law and Technology Program (IPOsgoode) features an academic blog by students and legal professionals about a wide variety of recent developments in Canadian and global intellectual property issues, available at: Scholar

40 British Columbia Civil Liberties Association, available at: Scholar

41 Nissenbaum (note 1), 187.Google Scholar

42 Id., 243.Google Scholar

43 Id., 221.Google Scholar

44 See, movie review of The Social Network: J.R. Jones, The Price of Privacy: In ‘The Social Network,’ Facebook founder Mark Zuckerberg Learns a Thing or Two About It, Chicago Reader (30 September 2010), available at:; see also, The Social Network's official movie website, available at: Scholar

45 Nissenbaum (note 1), 156-7.Google Scholar

46 Id., 59-62.Google Scholar

47 Id., 216.Google Scholar

48 Id., 217.Google Scholar

49 Id., 192-3.Google Scholar

50 See, Privacy Rights Watchdog, available at: Scholar

51 The Electronic Frontier Foundation (EFF) is also acting as intervener for recent U.S. Supreme Court case, Nelson v. NASA, see supra note 4; EFF's amicus curiae on the impact on civil liberties for collection of state employee information are available at: Scholar

52 See, Electronic Privacy Information Centre, available at: Scholar

53 See, for example, popular television shows such as MTV's Jersey Shore, The Hills, and Fox Network's American Idol etc. Google Scholar

54 A self-posted YouTube video launched the career of international celebrity, Canadian teenaged pop singer-performer, Justin Bieber.Google Scholar

55 See, e.g., celebrity sex-tape scandals with billionaire hotel heiress, Paris Hilton, Heidi-Spencer from popular MTV reality television show series, The Hills, etc. Google Scholar

56 Nissenbaum (note 1), 16.Google Scholar

57 Id., 156-7.Google Scholar

58 Id., 157.Google Scholar

59 Id., 16, 192-3, 217, 234-5, 245n2.Google Scholar

60 Id., 22, 188, 192.Google Scholar

61 Id., 193.Google Scholar

62 See, e.g., Curry, Bill, Privacy Breach at Veterans Affairs ‘Struck Terror in Our Hearts,' The Globe and Mail (22 September 2010), available at:; see, e.g., use of “super-injunctions:” Cassell Bryan-Low, Celebrities Boost Use of U.K. Gag Order, Wall Street Journal (8 October 2010), available at:; see, e.g., Wendy Kaminer, Restoring American Privacy, The Atlantic (7 October 2010), available at: Scholar

63 Nissenbaum (note 1), 225.Google Scholar

64 “Facebook fired” is a colloquial term referring to the phenomenon that Nissenbaum's describes without using this particular term: see, Id. Google Scholar