Document Type
Article
Abstract
This article explores how the need to define privacy has impeded our ability to protect it in law. The meaning of “privacy” is notoriously hard to pin down. This article contends that the problem is not with the word “privacy,” but with the act of trying to pin it down. The problem lies with the act of definition itself and is particularly acute when the words in question have deep-seated and longstanding common-language meanings, such as liberty, freedom, dignity, and certainly privacy. If one wishes to determine what words like these actually mean to people, definition is the wrong tool to use. The exact wrong way to go about understanding privacy is by supplying one’s own definition; that is unscientific. Since words in a living language mean many things (e.g., what does “cool” mean?), the act of definition reduces the multiple meanings of the defined word to a specified meaning. Each increase in precision comes with a corresponding separation from some set of meanings that would have applied to the living, undefined version of the word. The resulting defined word may be more precise but is often crippled, isolated, and bereft of the connections and connotations that made it part of a rich and living language. Like Procrustes, who strapped his victims to a bed and then either lopped off their feet if they stuck out or stretched the person on a rack if they were too short, lawyers are specifically trained to stretch and cut words. Tools of definition are badly suited to determine what people mean when they say “privacy.” For example, the actual meaning of “privacy” might better be explored through the tools of linguistics or cultural anthropology than through the tool of legal definition. This article therefore recommends that lawyers should set aside the flawed tool of definition and pick up the tool of analogy when they ask what words like privacy mean. This article asks why privacy has been uniquely pressed by concerns about supposed imprecision. For example, we do not stop our search for “security” because of a supposed lack of definition of the word. If privacy must have a definition to be operationalized, it will remain be conveniently narrow. moribund. And if privacy requires narrowing to be operationalized, any operationalization will be conveniently narrow. “You keep using that word. I do not think it means what you think it means.”
Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.
Citation Information
Fairfeld, Joshua A.T..
"“You Keep Using That Word”: Why Privacy Doesn’t Mean What Lawyers Think."
Osgoode Hall Law Journal
59.2 (2022)
: 249-290.
DOI: https://doi.org/10.60082/2817-5069.3779
https://digitalcommons.osgoode.yorku.ca/ohlj/vol59/iss2/1
References
1. Inigo Montoya, The Princess Bride (Act III Communications, 1987) at 00h:16m:28s.
2. See Daniel J Solove, "A Brief History of Information Privacy Law" in Christopher Wolf, ed, Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age (Practising Law Institute, 2006).
3. The starting point and organizational frame of my argument is the concept, originally ascribed to Ludwig Wittgenstein, that a word's meaning is its use by speakers within the context of a specific task, what he terms a "language-game." See Ludwig Wittgenstein, Philosophical Investigations, 3rd ed, translated by GEM Anscombe (Basil Blackwell, 1958) 20 at 43 [Wittgenstein, Philosophical Investigations].
4. See ibid at 43 ("For a large class of cases of the employment of the word 'meaning'-though not for all-this word can be explained in this way: the meaning of a word is its use in the language").
5. See Satya Sundar Sethy, "The Untenability of Atomistic Theory of Meaning" (2013) 7 Kritike 138. As Sethy states: https://doi.org/10.25138/7.1.a.8
[T] he atomistic theory of meaning or "meaning atomism" expresses that a representation either in linguistic or mental system is completely definable by itself. [It claims that the] meaning of a sentence is determined in isolation from other sentences of a language, which implies understanding a proposition does not require any support from other propositions of that language (ibid at 138).
6. For example, the English word "run" has over 645 different use cases for verb forms alone. See e.g. Simon Winchester, "A Verb for Our Frantic Times," The New York Times (2011 May 28), online: https://www.nytimes.com/2011/05/29/opinion/29winchester.html. See also Oxford English Dictionary, 3rd ed, (Oxford University Press, forthcoming 2037) sub verbo "run."
7. See e.g. Daniel J Solove, Understanding Privacy (Harvard University Press, 2008) [Solove, Understanding Privacy].
8. (2006) 154 U Pa L Rev 477 at 477 [Solove, "Taxonomy of Privacy"]. For a comprehensive list of the many written deaths that privacy has died at the hands of scholars, see Solove, Understanding Privacy, supra note 7 at 1-8.
9. Solove, Understanding Privacy, supra note 7 at 14.
10. Privacy and Freedom (Association of the Bar of the City of New York, 1967) at 7.
11. Configuring the Networked Self (Yale University Press, 2012) at 18.
12. Arthur R Miller, The Assault on Privacy: Computers, Data Banks, and Dossiers (University of Michigan Press, 1971) at 25.
13. See Kim Lane Scheppele, Legal Secrets (University of Chicago Press, 1988) at 184-85.
14. See Raymond Wacks, Law, Morality, and the Private Domain (Hong Kong University Press, 2000) at 222.
15. Ibid.
16. "Autonomy, Community, and Traditions of Liberty: The Contrast of British and American Privacy Law" (1990) 1990 Duke LJ 1398 at 1401-1402. https://doi.org/10.2307/1372837
17. "Too Much Information: How Not to Think about Privacy and the Fourth Amendment" (2014) 102 Cal L Rev 1069 at 1071.
18. 389 US 347 at 361-62 (US SC 1967), Harlan J, concurring.
19. "Requiem for a Heavyweight: A Farewell to Warren and Brandeis's Privacy Tort" (1983) 68 Cornell L Rev 291 at 365.
20. See e.g. Judith Wagner DeCew, "Privacy and Its Importance with Advancing Technology" (2016) 42 Ohio NUL Rev 471 at 485.
21. See William L Pardee, "The Massachusetts Right of Privacy Statute: Decoy or Ugly Duckling" (1975) 9 Suffolk UL Rev 1248 at 1249 ("[N]o definition of privacy has been generally accepted").
22. "How the Right to Privacy Became a Human Right" (2014) 14 Hum Rts L Rev 441 at 442. https://doi.org/10.1093/hrlr/ngu014
23. Anita L Allen & Erin Mack, "How Privacy Got Its Gender" (1990) 10 N Ill UL Rev 441 at 443, n 11, quoting Anita L Allen, Uneasy Access: Privacy For Women In A Free Society
(Rowman & Littlefield, 1988) at 11.
24. "Privacy and Press Instrusions: New Media, Old Law" in Dieter Dörr & Russell Weaver, eds, The Right to Privacy in the Light of Media Convergence: Perspectives from Three Continents (De Gruyter Inc, 2012) 88 at 108. https://doi.org/10.1515/9783110276152.88
25. See Negotiating Privacy: The European Union, the United States, and Personal Data Protection (Lynne Rienner, 2005) at 16.
26. See H McCloskey, "Privacy and the Right to Privacy" (1980) 55 Philosophy 17 at 37. https://doi.org/10.1017/S0031819100063725
27. See Harry Kalven Jr, "Privacy in Tort Law - Were Warren and Brandeis Wrong?" (1966) 31 Law & Contemp Probs 326-27. https://doi.org/10.2307/1190675
28. See Solove, Understanding Privacy, supra note 7 at 38.
29. Ibid.
30. (1948).
31. See e.g. Deirdre K Mulligan et al, "Privacy Is an Essentially Contested Concept:
A Multi-Dimensional Analytic for Mapping Privacy" (2016) 374 Philosophical Transactions of the Royal Society A at 1-3.
32. Ibid at 3.
33. Ibid at 4 ("Recognizing privacy's essential contestedness is key to securing its generativity for generations to come.…By recognizing privacy as essentially contested, we acknowledge that rival uses are 'not only logically possible', and 'humanly' probable, but also of 'permanent potential critical value'").
34. Ibid at 5 (referencing Gallie's "seven criteria for essentially contested concepts" as the only basis for why privacy is an essentially contested concept).
35. Ibid.
36. See Woodrow Hartzog, Privacy's Blueprint: The Battle to Control the Design of New Technologies (Harvard University Press, 2018) (developing a balanced theory between the need for design principles that secure privacy, and the difficulties in aligning those incentives with manufacturers who often profit from leaky privacy designs).
37. See ibid at 10, citing Neil M Richards, "Four Privacy Myths" in Austin Sarat, ed, A World Without Privacy: What Law Can and Should Do? (Cambridge University Press, 2015) 33. https://doi.org/10.1017/CBO9781139962964.002
38. Supra note 36 at 11.
39. Ludwig Wittgenstein in his "Dictation to Schlick." See Hanoch Ben-Yami, "Vagueness and Family Resemblance" in Hans-Johann Glock & John Hyman, eds, A Companion to Wittgenstein (John Wiley & Sons, 2017) 407 at 408 (quotation marks around "knowledge" added for effect). https://doi.org/10.1002/9781118884607.ch25
40. Translated by CK Ogden (Project Gutenberg, 2010) at 25-30 [Wittgenstein, Tractatus].
41. See Wittgenstein, Philosophical Investigations, supra note 3 at 20.
42. See Alan Janik & Stephen Toulmin, Wittgenstein's Vienna (Simon & Schuster, 1973) at 23.
43. See GEM Anscombe, An Introduction to Wittgenstein's Tractatus, 2nd ed (Harper &
Row, 1959) at 25 ("[I]t is sufficiently well known that the Tractatus contains a 'picture theory' of language").
44. See Wittgenstein, Tractatus, supra note 40 at 25-30 (analyzing and discussing how logical "pictures" of the world represent a "state of affairs" that must then be compared with reality to discover whether the picture is true or false). See also David G Stern, The Cambridge Companion to Wittgenstein, ed by Hans Sluga (Cambridge University Press, 1996).
Stern observes:
It is not difficult to understand why so many readers have been both baffled and fascinated by the Tractatus.…Following in Frege's and Russell's footsteps, Wittgenstein argued that every meaningful sentence must have a precise logical structure which, however, is generally hidden beneath the clothing of the grammatical appearance of the sentence and requires, therefore, an extensive logical analysis to be made evident. Such an analysis, Wittgenstein was convinced, would establish that every meaningful sentence is either a truth-functional composite of other simpler sentences or an atomic sentence consisting of a concatenation of simple names. He argued furthermore that every atomic sentence is a logical picture of a possible state of affairs which must have exactly the same formal structure as the atomic sentence that depicts it. Wittgenstein employed this "picture theory of meaning"-as it is usually called-to derive conclusions about the world from his observations about the structure of the atomic sentences. He postulated, in particular, that the world must itself have a definite logical structure, even though we may not be able to determine it completely. He also held that the world consists primarily of facts, corresponding to the true atomic sentences, rather than of things, and that those facts, in turn, are concatenations of simple objects, corresponding to the simple names of which the atomic sentences are composed (ibid at 9-10).
45. In his later work Philosophical Investigations, Wittgenstein defines the "ostensive theory of language" in the following way:
An important part of the training will consist in the teacher's pointing to the objects, directing the child's attention to them, and at the same time uttering a word; for instance, the word "slab" as he points to that shape.…This ostensive teaching of words can be said to establish an association between the word and the thing (supra note 3 at 4).
46. See ibid at 4 ("An important part of the training will consist in the teacher's pointing to the objects, directing the child's attention to them, and at the same time uttering a word; for instance, the word "slab" as he points to that shape.…This ostensive teaching of words can be said to establish an association between the word and the thing").
47. See Wittgenstein, Tractatus, supra note 40 at 28.
48. Ibid at 51.
49. See "The New Terminology of Privacy," Opinion, The New York Times (10 April 2019), online: https://www.nytimes.com/interactive/2019/04/10/opinion/internet-privacy-terms.html.
50. Bertrand Russell, "Foreword" in Wittgenstein, Tractatus, supra note 40, 1. Russell states:
Mr. Wittgenstein is concerned with the conditions for a logically perfect language....The essential business of language is to assert or deny facts. Given the syntax of a language, the meaning of a sentence is determinate as soon as the meaning of the meaning of the component words is known....The first requisite of an ideal language would be that there should be one name for every simple, and never the same name for two different simples (ibid at 8).
51. See Verein Ernst Mach, Wissenschaftliche Weltauffassung Der Wiener Kreis (Artur Wolf Verlag, Wien, 1929) at 307 [Verein Ernst Mach in Wein]. See also Otto Neurath, "Wissenschaftliche Weltauffassung: Der Wiener Kreis" in Marie Neurath & Robert S Cohen, eds, Empiricism and Sociology (D Reidel, 1973). Neurath states:
We have characterised the scientific world-conception essentially by two features. First it is empiricist and positivist: there is knowledge only from experience, which rests on what is immediately given. This sets the limits for the content of legitimate science. Second, the scientific world-conception is marked by application of a certain method, namely logical analysis. The aim of scientific effort is to reach the goal, unified science, by applying logical analysis to the empirical material (ibid at 307).
52. See Verein Ernst Mach in Wein, supra note 51 at 307.
53. See Janik & Toulmin, supra note 42 at 212-14 (discussing how the Vienna Circle used Wittgenstein's Tractatus as an epistemological starting point for their positivism, which was later built on by Russell and other contemporaries).
54. See Verein Ernst Mach in Wein, supra note 51 at 303:
Von wissenschafts und philosophiegeschichtlichen Linien waren es besonders die folgenden, die sich hier vereinigten; sie seien gekennzeichnet durch diejenigen ihrer Vertreter, deren Werke hier hauptsächlich gelesen und erörtert wurden.…Logistik und ihre Anwendung auf die Wirklichkeit: Leibniz, Peano, Frege, Schröder, Russell, Whitehead, Wittgenstein…[und] Axiomatik: Pasch, Peano, Vailati, Pieri, Hilbert.
55. See David Sugarman & HLA Hart, "Hart Interviewed: HLA Hart in Conversation with David Sugarman" (2005) 32 JL & Soc'y 267 at 273-75. https://doi.org/10.1111/j.1467-6478.2005.00324.x
56. See "Positivism and the Separation of Law and Morals" (1958) 71 Harv L Rev 593 https://doi.org/10.2307/1338225
at 601-02, n 25.
57. See ibid at 608-10, 602, n 25.
58. See Sugarman & Hart, supra note 55.
59. Ibid.
60. Ibid.
61. "Privacy Law's False Promise" (2020) 97 Wash UL Rev 773 at 776 [emphasis in original].
62. See "We Read 150 Privacy Policies. They were an Incomprehensible Disaster," The New York Times (12 June 2019), online: https://www.nytimes.com/interactive/2019/06/12/opinion/facebook-google-privacy-policies.html.
63. Ibid.
64. Ibid; Stephen Hawking, A Brief History of Time (Bantam Books, 1988).
65. This effort was well underway when Ludwig Wittgenstein wrote to a confidant in 1932: "In the Tractatus, I was unclear about 'logical analysis' and ostensive demonstration. I used to think that there was a direct link between Language and Reality." Janik & Toulmin, supra note 42 at 222.
66. Supra note 3.
67. See ibid. See also Dennis M Patterson, "Wittgenstein and the Code: A Theory of Good Faith Performance and Enforcement Under Article Nine" (1988) 137 U Pa L Rev 335 at 356-59. https://doi.org/10.2307/3312251
68. See Roshan Ara, "Wittgenstein's Concept of Language Games" (2006) 26
Al-Hikmat 47 at 48-49.
69. See Wittgenstein, Philosophical Investigations, supra note 3 at 46.
70. See Daniel G Stroup, "Law and Language: Cardozo's Jurisprudence and Wittgenstein's Philosophy" (1984) 18 Val U L Rev 331 at 349-50.
71. Wittgenstein, Philosophical Investigations, supra note 3 at 11.
72. Ibid at 3.
73. Ibid at 5.
74. See e.g. ibid at 4 ("Don't you understand the call "Slab!" if you act upon it in
such-and-such a way?").
75. See e.g. Rick Davis, "Group Morality and Forms of Life: Dewey, Wittgenstein and Inter-Subjectivity" (2012) 4 Eur J Pragmatism & Am Phil 118 at 119 ("Wittgenstein…[holds] that language-its structure and meaning-cannot be understood if divorced from its context").
76. See Wittgenstein, Philosophical Investigations, supra note 3 at 46.
77. Ibid.
78. See David Goldberg, "Dronalism: Journalism, Remotely Piloted Aircraft, Law and Regulation" (2015) 10 FIU L Rev 405 at 428. https://doi.org/10.25148/lawrev.10.2.8
79. 8 F.3d 1222 (7th Cir 1993) at para 1229.
80. See Gordon Baker, "Wittgenstein: Concepts or Conceptions?" (2001) 9 Harvard Rev Philosophy 7 at 14. https://doi.org/10.5840/harvardreview2001912
81. See e.g. Deborah Tannen, "Discourse Analysis-What Speakers Do in Conversation" (last visited 10 January 2022), online (blog): Linguistic Society of America www.linguisticsociety.org/resource/discourse-analysis-what-speakers-do-conversation.
82. See Solove, Understanding Privacy, supra note 7 at 42.
83. See Wittgenstein, Philosophical Investigations, supra note 3 at 225.
84. See Dennis M Patterson, "Law's Pragmatism: Law as Practice and Narrative" (1990) 76 Va L Rev 937 at 974 ("[E]ven for Wittgenstein's builders, ostensive definition is not enough for there to be meaning. The meaning of the activity is a function of 'a particular training.' If the training were different, 'the same ostensive teaching of these words would have effected a quite different understanding'"). https://doi.org/10.2307/1073154
85. Ibid.
86. See Solove, Understanding Privacy, supra note 7 at 42 ("[T]he meaning of a word comes from the way a word is used in language, not from an inherent connection between the word and what it signifies"); Daniel J Solove, "Conceptualizing Privacy" (2002) 90 Cal https://doi.org/10.2307/3481326
L Rev 1087 at 1097-98 [Solove, "Conceptualizing Privacy"] (describing Wittgenstein's theory of family resemblances and calling for a decentralized look at privacy meanings
that incorporate different legal approaches and conceptualizations of privacy); Solove, "A Taxonomy of Privacy," supra note 8 at 477 (developing a taxonomy of privacy with buckets of meaning, drawn from privacy problems, legal conceptions, and law-focused historical and cultural sources).
87. See Solove, Understanding Privacy, supra note 7 at 40.
88. Solove, "Conceptualizing Privacy," supra note 86 at 1097 [emphasis in original].
89. See Wittgenstein, Philosophical Investigations, supra note 3 at 32.
90. See Daniel J Solove, "I've Got Nothing to Hide and Other Misunderstandings of Privacy" (2007) 44 San Diego L Rev 745 at 760 ("The term privacy is best used as a shorthand umbrella term for a related web of things.…Classifying [a problem] as a privacy problem is merely saying that it bears some resemblance to other privacy problems") [Solove, "I've Got Nothing to Hide"].
91. See generally Solove, "Taxonomy of Privacy," supra note 8 (explaining how Solove's taxonomy was developed and what it contains).
92. See Solove, Understanding Privacy, supra note 7 at 9-11.
93. See e.g. Bert-Jaap Koops et al, "A Typology of Privacy" (2017) 38 U Pa J Intl L 483 at 487 (creating a quintessential and erudite typology, in which the authors construct a set of mutually exclusive conceptual buckets that cover the broad range of privacy claims, based on their reading of some scholars, legal cases, and national constitutions). If the reader cannot succeed in sorting at least some of these into very different buckets, or coming up with other buckets with as much (or more) value, I will eat my hat. Solove, "I've Got Nothing to Hide," supra note 90 at 757.
94. See e.g. Koops, supra note 93; Solove, "I've Got Nothing to Hide," supra note 90 at 757 ("I developed a taxonomy of privacy….The taxonomy is my attempt to formulate a
model of the problems from studying the welter of laws, cases, issues, and cultural and historical materials").
95. See Wittgenstein, Philosophical Investigations, supra note 3 at 46.
96. Joel Reidenberg, "Privacy in Public" (2014) 69 U Miami L Rev 141 at 142-43.
97. Ibid.
98. See e.g. Katherine Picho & Anthony R Artino Jr, "7 Deadly Sins in Educational Research" (2016) 8 J Graduate Medical Education 483-87. https://doi.org/10.4300/JGME-D-16-00332.1
99. See Ryan Calo, "The Boundaries of Privacy Harm" (2011) 86 Ind LJ 1131 at 1141 ("To see the limitations of this [taxonomy] approach...we need to examine how privacy problems come to be included in the taxonomy in the first place....[I]t turns out to be impossible to classify without reference to an 'overarching principle'").
100. Ibid at 1141.
101. Ibid.
102. Ibid.
103. See Solove, Understanding Privacy, supra note 7 at 105 ("My taxonomy is an attempt at categorization, and all attempts at categorization are artificial....One can certainly quarrel with my taxonomy's categories. Since they are not the product of any overarching notion of privacy, they are not final and immutable").
104. "Privacy" (1960) 48 Cal L Rev 383 at 389 (laying out the four distinct kinds of tortious invasion that constitute the law of privacy). https://doi.org/10.2307/3478805
105. Prosser explains that although the four privacy torts bear a similar name, they have "almost nothing in common" except reference to the phrase "to be let alone" (ibid at 389).
106. See Wittgenstein, Philosophical Investigations, supra note 3 at 2-3 ("Every word has a meaning. This meaning is correlated with the word. It is the object for which the word stands").
107. See e.g. Wittgenstein's "beetle in a box" experiment in Philosophical Investigations, supra note 3. Wittgenstein says that
Suppose everyone had a box with something in it: we call it a "beetle". No one can look into anyone else's box, and everyone says he knows what a beetle is only by looking at his beetle.-Here it would be quite possible for everyone to have something different in his box. One might even imagine such a thing constantly changing.-But suppose the word "beetle" had a use in these people's language?-If so it would not be used as the name of a thing. The thing in the box has no place in the language-game at all; not even as a something: for the box might even be empty (ibid at 100).
Wittgenstein uses this example to explain the fruitlessness of an ostensive theory of language, in which all of the people with boxes use the same word to "point" to different objects. However, this thought experiment also shows the futility of conversing about philosophy or word meanings when each participant in the conversation has a different epistemology interpreting what is in their "box." In fact, "all meaning-designation goes through an individual's perception and thus is subject to the distortion factor inherent in that individual's mental 'box.'" Rebecca Schuman, "Kafka's Verwandlung, Wittgenstein's Tractatus, and the Limits of Metaphorical Language" (2011) 44 Modern Australian Literature 19 at 27.
108. See James Fieser, "Continental Rationalism" (1 September 2017, last modified 1 June 2020), online: University of Tennessee Martin https://www.utm.edu/staff/jfieser/class/110/7-rationalism.htm ("Rationalism is the philosophical view that knowledge is acquired through reason, without the aid of the senses. Mathematical knowledge is the best example of this, since through rational thought alone we can plumb the depths of numerical relations, construct proofs, and deduce ever more complex mathematical concepts").
109. See Peter Markie, "Rationalism vs. Empiricism" (19 August 2004, last modified 6 July 2017), online: Stanford Encyclopedia of Philosophy Archive https://plato.stanford.edu/archives/fall2017/entries/rationalism-empiricism/.
110. See Albert J Mills et al, "Thick Description" in Encyclopedia of Case Study Research (Sage Publications, 2010) at 942 ("Thick description is a term used to characterize the process of paying attention to contextual detail in observing and interpreting social meaning when conducting qualitative research") [emphasis omitted].
111. See The Interpretation of Cultures (Basic Books, 1973) at 5.
112. "The Common Law" (1881) at para 1.
113. Ibid.
114. JK Rowling (Bloomsbury, 1997).
115. Supra note 111 at 5.
116. Ibid at 6-7.
117. Ibid at 6.
118. Ibid at 6-7.
119. Ibid.
120. Ibid at 17.
121. Ibid at 18
122. Ibid.
123. The Morality of Law (Yale University Press, 1969) at 106.
124. (1983) 97 Harv L Rev 4 at 11 (suggesting a social basis for jurisgenesis).
125. See e.g. Wittgenstein, Philosophical Investigations, supra note 3 at 122.
126. See, supra, notes 17-38 and accompanying text for a discussion and run-down of numerous scholars who state that privacy has no definition or cannot be easily or broadly defined.
127. See generally Helen Nissenbaum, "Privacy as Contextual Integrity" (2004) 79
Wash L Rev 119.
128. See generally Westin, supra note 10 at 7 ("Privacy is the claim of individuals, groups,or institutions to determine for themselves when, how, and to what extent information about them is communicated to others"). See also Charles Fried, "Privacy" (1968) 77 Yale LJ 475 at 483 ("Privacy...is control over knowledge about oneself"). See generally Richard B Parker, "A Definition of Privacy" (1974) 27 Rutgers L Rev 275.
129. See generally Ira S Rubinstein, "Regulating Privacy by Design" (2011) 26 BTLJ 1409; Hartzog, supra note 36.
130. See Privacy as Trust: Information Privacy for an Information Age (Cambridge University Press, 2018).
131. Sealioning means to troll by asking questions with the purpose of exhausting the explainer and making them look unreasonable. Sealioning is itself a new word, the meaning of which is being negotiated in the ways described by this article.
132. See Harry Surden, "Machine Learning and Law" (2014) 89 Wash L Rev 87 at 88
("[C]omputer generated results have often proven useful for particular tasks where strong approximations are acceptable....Broadly speaking, machine learning involves computer algorithms that have the ability to 'learn' or improve in performance over time on some task").
133. See Surden, supra note 132 at 92 ("Often, such an algorithm will need data with many hundreds or thousands of examples of the relevant phenomenon in order to produce a useful internal model").
134. See Gideon Lewis-Kraus, "The Great A.I. Awakening," The New York Times (14 December 2016), online: https://www.nytimes.com/2016/12/14/magazine/the-great-ai-awakening.html.
135. Ibid.
136. See Anne McCarthy, "How 'Smart' Email Could Change the Way We Talk," BBC News (12 August 2019), online: https://www.bbc.com/future/article/20190812-how-ai-powered-predictive-text-affects-your-brain.
137. See "A/B Testing in Chatbots" (last visited 10 January 2022), online (blog): (advertising A/B testing for chatbots).
138. Yochai Benkler, Robert Farris & Hal Roberts, Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (Oxford University Press, 2018) at 272.
139. See Paul Hitlin, Kenneth Olmstead & Skye Toor, "Public Comments to the Federal Communications Commission About Net Neutrality Contain Many Inaccuracies and Duplicates" (29 November 2017), online: https://www.pewresearch.org/internet/2017/11/29/public-comments-to-the-federal-communications-commission-about-net-neutrality-contain-many-inaccuracies-and-duplicates/
Lorenzo Franceschi-Bicchierai, "More Than 80% Of All Net Neutrality Comments Were Sent By Bots, Researchers Say," Vice (23 October 2017), online: https://www.vice.com/en/article/80-percent-net-neutrality-comments-bots-astroturfing/.
140. See e.g. Nicholas Confessore, "Cambridge Analytica and Facebook: The Scandal and the Fallout So Far," The New York Times (4 April 2018), online: https://www.nytimes.com/2018/04/04/us/politics/cambridge-analytica-scandal-fallout.html.
141. See Will Douglas Heaven, "Facebook just released a database of 100,000 deepfakes to teach AI how to spot them" (12 June 2020), online: MIT Technology Review www.technologyreview.com/2020/06/12/1003475/ facebooks-deepfake-detection-challenge-neural-network-ai
142. See Barbara B Kawulich, "Participant Observation as a Data Collection Method" (2005) 6 Forum: Qualitative Soc Research, online (pdf): https://www.qualitative-research.net/index.php/fqs/article/view/466/997 ("[P]articipant observation [is] used as a way to increase the validity of the study, as observations may help the researcher have a better understanding of the context and phenomenon under study").
143. See also Geertz, supra note 111 at 3-30.
144. See e.g. Aaron Perzanowski & Chris Jay Hoofnagle, "What We Buy When We Buy Now" (2017) 165 U Pa L Rev 315 (applying a similar methodology to discover what consumers think they are getting when online sellers use words like "buy now" and "sell"). https://doi.org/10.31228/osf.io/kw7sx
145. See e.g. Lynne S Giddings, "Mixed-Methods Research: Positivism Dressed in Drag?" (2006) 11 J Research & Nursing 195 at 197 (stating that government grant projects and private funding agencies have increasingly requested mixed-methods research, creating an economic incentive for traditional positivist researchers to switch their research modes). See generally Caitlin E Coyle et al, "Federal Funding for Mixed Methods Research in the Health Sciences in the United States: Recent Trends" (2016) 12 J Mixed Methods Research 305 https://doi.org/10.1177/1558689816662578
JP Wisdom & MD Fetters, "Funding for Mixed Methods Research: Sources and Strategies" (2015) in Sharlene Nagy Hese-Biber & R Burke Johnson, eds, The Oxford Handbook of Multimethod and Mixed Research Inquiry (Oxford Handbooks, 2015) 314. https://doi.org/10.1093/oxfordhb/9780199933624.013.11
146. See e.g. Kieran Browne, Ben Swift & Henry Gardner, "Critical Challenges for the Visual Representation of Deep Neural Networks" in J Zhou & F Chen, eds, Human and Machine Learning: Visible, Explainable, Trustworthy and Transparent Human-Computer Interaction Series (Springer International, 2018) at 120 ("The term 'black box' describes a system with clearly observable inputs and outputs, but with inscrutable internal processes…the relationship between input and output is observable but unintelligible").
@font-face {font-family:"Cambria Math"; panose-1:2 4 5 3 5 4 6 3 2 4; mso-font-charset:0; mso-generic-font-family:roman; mso-font-pitch:variable; mso-font-signature:-536870145 1107305727 0 0 415 0;}@font-face {font-family:Aptos; panose-1:2 11 6 4 2 2 2 2 2 4; mso-font-charset:0; mso-generic-font-family:swiss; mso-font-pitch:variable; mso-font-signature:536871559 3 0 0 415 0;}p.MsoNormal, li.MsoNormal, div.MsoNormal {mso-style-unhide:no; mso-style-qformat:yes; mso-style-parent:""; margin:0cm; mso-pagination:widow-orphan; font-size:12.0pt; font-family:"Aptos",sans-serif; mso-ascii-font-family:Aptos; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Aptos; mso-fareast-theme-font:minor-latin; mso-hansi-font-family:Aptos; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi;}.MsoChpDefault {mso-style-type:export-only; mso-default-props:yes; mso-ascii-font-family:Aptos; mso-ascii-theme-font:minor-latin; mso-fareast-font-family:Aptos; mso-fareast-theme-font:minor-latin; mso-hansi-font-family:Aptos; mso-hansi-theme-font:minor-latin; mso-bidi-font-family:"Times New Roman"; mso-bidi-theme-font:minor-bidi; mso-font-kerning:0pt; mso-ligatures:none;}div.WordSection1 {page:WordSection1;}