Privacy’s Algorithmic Turn: An Intellectual History

Abstract

Between 1990 and 2020, the concept of information privacy in American privacy law scholarship experienced an “algorithmic turn,” gradually expanding to encompass a new set of privacy harms, as well as a different kit of legal tools. This dissertation traces, in detail, the intellectual history of this sociotechnical phenomenon. Taking the scholarly work produced around the Privacy Law Scholars Conference (PLSC) as well as earlier scholarship that preceded and inspired it as my primary object of study, I conducted document analysis of 574 law review articles written between 1990 and 2020, as well as fifteen oral history interviews with a purposely drawn representative sample of privacy law scholars. In my analysis, I take a Ground Theory approach and draw from the methodological framework of Intellectual History, following the discursive contextual approach proposed by intellectual historian David A. Hollinger. In this dissertation I tell a history of how, over the past thirty years, the community of privacy scholars that has developed around PLSC transitioned from focusing primarily on autonomy-based harms to raising a vast array of harms that share the following three characteristics: being objective, originating from the actual processing phase of the data cycle, and having architectural effects. In this process, scholars shifted twice from states of regulatory innovation and flux to those of relative convergence regarding the preferred tools to protect information privacy. Thus, while between 2000 and 2007 scholars almost unanimously supported the legal implementation of the Fair Information Practices (“FIPs”) principles in order to empower individuals, by the end of the 2010s several of them seemed to be coalescing around a hands-on set of substantive requirements, duties, and prohibitions intended to take power away from corporations. In addition, building on Science & Technology Studies (STS) literature on “imaginaries” as well as on interdisciplinary scholarship where this concept has been applied to legal endeavors, I propose the theoretical concept of “techno-legal imaginaries” and apply it to the case of the American privacy law scholars here examined. I suggest that the transformation of the scholars’ techno-legal imaginaries over the period of time covered by this study can provide us with some insight into the evolution of the tools proposed by scholars to protect information privacy. Back in the late 1990s and early 2000s, many American privacy law scholars aimed for Information Privacy law to contribute to a pluralist, free, and democratic society that promoted liberty, autonomy, and self-determination. Within that normative framework, procedural standards that gave individuals control over their personal information, such as the FIPs, stood out as appropriate. Over the years, however, scholars’ techno-legal imaginaries have radically changed. Several scholars now expect Information Privacy law to promote a socially just society that besides protecting individuals’ autonomy, defends the vulnerable and marginalized, protects individuals from data extraction and its consequent power imbalances, and holds corporations accountable. The most recent batch of hands-on tools makes sense within these normative commitments. This research builds upon the Legal Construction of Technology method, to present privacy’s algorithmic turn as a complex sociotechnical phenomenon, placing it within a broader context where technological, social, legal, and—as I hope to demonstrate here—cognitive elements interact and become entangled.