The Danger of Contextual Integrity

Abstract

Contextual integrity has now become a (the?) dominant academic theory of privacy. It identifies privacy as both complex and social, two alluring attributes that other leading theories reject. Scholars who engage contextual integrity mostly do so only to convey their confidence in it as their working framework. Even passingly critical notes are rare. This article offers a legal realist critique: Were contextual integrity adopted as a legal standard, it would undermine the very values it was intended to protect, systematically favoring data-hungry corporations at the expense of an already shrinking zone of protected individual privacy. Contextual integrity is dangerous precisely because of the complexity and sociality that draw so many scholars to it. In an adversarial courtroom that pits corporate data interests against aggrieved individuals, these theoretical virtues favor the more sophisticated, well-funded, repeat player.