Privacy: Expectations, Norms, Technology Richard Warner

The Past My views about what ought to be private in my life What is in fact private

The Present: Individual Point of View My views about what ought to be private in my life What is in fact private

The Present: Societal Point of View Views about what ought to be private in my life What is in fact private

What This Seems To Mean  It appears we must answer this question: “In general, what ought to be private?”  We have only needed to answer this question in limited ways before.  Are there ways to avoid having to answer the question? Legal: consent requirements. Technological: privacy protections.

What Is A Norm?  A norm is a sanction-supported regularity in behavior in a group, where the regularity exists in part because group members think they ought to conform to the regularity.  Examples: Talking in a seminar Where to stand in an elevator Passing in a narrow hallway

Community Norms of Fair Dealing  Community norms norms of etiquette, professional norms, norms governing family relations, norms defining what counts as negligence. Fair dealing norms  Not assuming there are norms to resolve all questions of fairness: No relevant norms for certain provisions in clickwrap, shrinkwrap, and browsewrap agreements.

Articulating Norms  Some norms are easy to articulate. “Do not eat your meat with your salad fork”); others, however, are more difficult (such as Compare the norm that governs how close to others you should stand under various conditions of crowding in elevators.  Some are not easy to articulate. They may consist of little more than a rough-and-ready conception of paradigm cases, plus a past pattern of judgments of relevant similarity and dissimilarity to such cases, and a commitment to extend and, as necessary, modify this pattern in future judgments.

Fairness Not Assumed  To assume that community norms of fair dealing exist is not to assume that what those norms allow is in fact fair. Nineteenth century United States: a married woman could not legally hold title to property  To conclude that community norms of fairness allow sellers to disclaim consequential damages is not to conclude that it is fair to allow them to do so.

Norms and Identity  Norms shape our identities as persons. You cannot, be a lawyer except in a society governed by law; practice medicine unless the society you are in recognizes the practice; be a professional race car driver except in a community that recognizes the sport. Social norms define the role, impose obligations, create expectations, and shape desires both for the lawyer, doctor, or race car driver, and for those who interact with them.

Norms and Identity  Similar remarks hold for being a parent, child, lover, or spouse. Being a parent, child, lover, or spouse is a relationship that takes on different meanings and definitions depending on the norms of the society in which the relationship is realized.  In general, we define our identities (primarily if not entirely) by adopting roles defined by the norms of the society (or societies) in which we live.  Norms of fair dealing are no exception. The define roles as buyer, seller, negotiator, and the like, and they impose obligations, create expectations, and shape desires in regard to those roles. It is in light of norms of fair dealing that we define our “market identities” as buyers and sellers.

An Important Consequence  The identity-shaping role of norms has an important consequence: other things being equal, those who adhere to certain norms expect and desire others (at least those others whom they think do or should also adhere to the norms) to act in accord with those norms.  In particular, those who embrace fairness norms expect and desire others to treat them in accord with those norms, and, consequently, will not, other things being equal, enter into a contract with a seller when they believe the contractual terms violate relevant fairness norms.