Theoretical Inquiries in Law 20 (1):221-256 (2019)

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Abstract
According to the theory of contextual integrity, privacy norms prescribe information flows with reference to five parameters — sender, recipient, subject, information type, and transmission principle. Because privacy is grasped contextually, the values of these parameters range over contextually meaningful ontologies — of information types and actors, in contextually defined capacities. As an alternative to predominant approaches to privacy, which were ineffective against novel information practices enabled by IT, CI was able both to pinpoint sources of disruption and provide grounds for either accepting or rejecting them. Mounting challenges from a burgeoning array of networked, sensor-enabled devices and data-ravenous machine learning systems, similar in form though magnified in scope, call for renewed attention to theory. This Article introduces the metaphor of a data chain to capture the nature of these challenges. With motion up the chain, where data of higher order is inferred from lower-order data, the crucial question is whether privacy norms governing lower-order data are sufficient for the inferred higher-order data. While CI has a response to this question, a greater challenge comes from data primitives, such as digital impulses of mouse clicks, motion detectors, and bare GPS coordinates, because they appear to have no meaning. Absent a semantics, they escape CI’s privacy norms entirely.
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DOI 10.1515/til-2019-0008
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