Unpopular Privacy: What Must We Hide?, By Anita L. Allen. Oxford University Press, 2011, 259 pages inclusive of endnotes and index. Hardbound, $35.
Professor Allen, Professor of Law and Philosophy at the University of Pennsylvania Law School, specializes in ethics and philosophy of law. This monograph will be a good addition to any academic law collection that is seeking to enhance its holdings on privacy and the law. She begins by admitting that she does write from a feminist liberal perspective and yet sees the need for coerced or mandated privacies, even for those beneficiaries who may not want them … or perhaps especially for those beneficiaries who don’t want them. Her approach is from an ethical and philosophical standpoint.
Prof. Allen covers many types of privacies that are, or arguably should be, mandated. She begins by setting the groundwork with a review of everyday meanings of privacy. She discusses existing privacy law and whether paternalistic privacy policies are justifiable. She also explores the right to waive privacy protection. She sets out possible justification for mandated privacy and its practical limits.
Prof. Allen has divided this work into sections on physical privacies and information privacies. The physical privacies include notions like seclusion and solitude. Each of these can be either desired or imposed. Think of the desire of the average person to be left alone, to have peace and quiet. Compare that with instances where society imposes seclusion and solitude, such as prison, quarantine, or cultures where women are not allowed out of the home without a chaperone. Also, in the physical privacy portion of the book, Prof. Allen discusses modesty and nudity. There is an in-depth look at Muslims in America and other Western cultures (the wearing of the hijab, niqab, and burqa), modesty rights, and religious freedom. The nudity section reviews legal moralism, the harm principle, conditions of work, and the religious roots of modesty as “an ethical virtue, worthy of legal protection.”
The section on informational privacy also runs a wide range of topics. Prof. Allen begins with the standard and widely accepted practice of confidentiality within professions and in other relationships and occupations. She discusses confidentiality in context, as well as waiver and exceptions. In with the other informational privacies she broaches the subject of racial privacy. There is the expected conversation about profiling but beyond that an interesting look at the balance between gathering information that helps minorities versus the gathering itself that may be harmful. How can society understand to what extent a minority is underserved or discriminated against if the same society is prevented from gathering that very information? On the other hand, do we trust that our government will store and use such information in a safe and productive way and not as a tool of discrimination? The informational privacy section winds up with sections covering electronic data, federal privacy statutes, lifelogs, and the Children’s Internet Privacy Law. All in all, this is a fascinating look at varied aspects of privacy and the law. It is definitely geared for the Western legal academic reader.
There are 48 pages of notes and 11 pages of index for 197 pages of text. The notes are a nice mix of primary and secondary legal authority, electronic, and print resources. The only negative I encountered was what I thought to be a surprising number of typos.
Wanita Scroggs, JD, MLIS, is International Law Librarian at Dolly & Homer Hand Law Library at Stetson University College of Law.