Yesterday we discussed a bit of a slap fight going on between Professor Ann Bartow and Professor Daniel Solove. If you're already familiar, skip down past the break for round two. If you're not familiar, basically, Solove wrote an article about privacy, Bartow wrote a review of it, and said that it would have been more effective with a bit more color and "dead bodies:"
To phrase it colloquially, in this author’s view, the Solove taxonomy of privacy suffers from too much doctrine, and not enough dead bodies. It frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.
Now, Solove has a book coming out, and has published some excerpts as separate articles, and in one of them he states:
Investigating the nothing-to-hide argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for greater privacy protections. For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must “negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” She says that privacy needs more “dead bodies,” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other [types of harm]."
Bartow's objection is actually consistent with the nothing-to-hide argument. Those advancing the nothing-to-hide argument have in mind a particular kind of appalling privacy harm, one in which privacy is violated only when something deeply embarrassing or discrediting is revealed. Like Bartow, proponents of the nothing-to-hide argument demand a dead-bodies type of harm.
Solove took Bartow's critique of his style, and turned it into a substantive position which there's no evidence that she holds, and Bartow complained about this on a blog.
And now, the slap fight continues. Last night, Solove decided to post a comment on the blog, in response to Bartow's accusation that he distorted what she said:
Your post comes as a big surprise to me, and I am very sorry to hear that you are so upset over what I’ve written. By no means did I deliberately intend to twist or mischaracterize what you said — any such distortion was purely unintentional.
When I wrote that “Bartow’s objection is actually consistent with the nothing-to-hide argument,” I was attempting to say — unfortunately not as clearly as I could have said — that I thought your argument about dead bodies had certain assumptions in common with the nothing-to-hide argument — not that it was the equivalent of the nothing-to-hide argument or that you were making the nothing-to-hide argument. I did not intend to suggest or imply that you thought privacy doesn’t matter if you lack dead bodies. I used phrases such as: “For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must . . .” and “Bartow is certainly right that people respond much more strongly to blood and death than to more-abstract concerns.”
I am not intending to argue that you advance the nothing-to-hide argument. Nor am I intending to argue that you contend that privacy doesn’t matter if there are no dead bodies. My intent is to argue that there is a common demand made by you and proponents of nothing-to-hide for a more visceral kind of harm. The nothing-to-hide proponents make this demand because they don’t believe privacy matters unless it results in a visceral harm. You argue that characterizations of privacy harms need more dead bodies in order to have more resonance. I am not intending to suggest that you reject privacy harms that lack visceral injuries. Instead, I am attempting to critique the argument that we can — or should — characterize privacy harms in a way that enhances the blood and death.
I’m sorry if this wasn’t clear from what I wrote.
First, Professor Solove, you need to learn that you have to get things right before you send your book to the publisher. There are a ton of law students and recent graduates without jobs, and you can easily find someone to proof read and cite check on the cheap. We know how much law professors make, and you can afford to hire a kid for $10/hr as your research assistant, or probably get the school to pony up the cash itself. If it's too late to edit the book, see if the publisher will consider adding a pocket part to make up for your mistakes. Do you allow your students to challenge their grades if they made really good arguments, but just weren't clear enough in their writing?
Now, a bit of a metaphor.
An author, who we'll call Han Solo Love, writes:
Investigating the Final Solution argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for holocaust memorials. For example, Jewish proponents of holocaust museums sometimes argue that in order to have real resonance, persecution must "negatively impact the lives of living, breathing human being beyond simply provoking feelings of unease." They say that the holocaust needs more "dead bodies."
The Jews objection is actually consistent with the Final Solution. Those advancing the Final Solution have in mind a particular kind of appalling harm. Like the Jews, proponents of the holocaust demand dead-bodies type of harm.
Then the Jews, naturally, get upset over the way they're being characterized, because it sounds like they want more Jews to be killed. So, we get some clarity from Solo Love:
I am not intending to argue that Jews advance the holocaust. Nor am I intending to argue that Jews contend that antisemitism doesn't matter if there are no dead bodies. My intent is to argue that there is a common demand made by Jews and the proponents of the Holocaust for a more visceral kind of harm. The holocaust proponents make this demand because they don't think a master race can be created without the extermination of the Jews. The Jews argue that characterizations of the holocaust need more dead bodies in order to have more resonance.
Do Bartow and the nothing-to-hide proponents have something in common? The nothing-to-hiders think that privacy proponents need to show there's a real harm. Bartow argues that showing real harms makes for good rhetoric. So, all that they have in common is they both say "show the dead bodies." They have as much in common as proponents of a holocaust museum and an SS officer both saying "show the dead bodies."
What they share is at best tenuous, but more importantly, it's irrelevant. Who cares that their different points of view sometimes make use of the same phrase? If this were a book about linguistics, it might be interesting, but it's not. Putting Bartow and the nothing-to-hiders in the same paragraph adds nothing of substance, but does confuse the issue.
The average reader would have to spend a long time picking apart Solove's words to understand what he's saying, but I don't think we can reasonably expect readers to put more time into this passage than Solove did.