April 2013 Vol. 111 No. 6 THE REVIEW

The Fight to Frame Privacy

Woodrow Hartzog

The resolution of a debate often hinges on how the problem being debated is presented. In communication, sociology, psychology, and related disciplines, this method of issue presentation is known as framing. Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. For example, people are more willing to tolerate rallies by controversial hate groups when such rallies are framed as free speech issues, rather than disruptions of the public order.

Consider two questions: As guardians of civil rights, how should judges protect our privacy against the ever-increasing scope of government surveillance? When should judges defer to other branches of government that are better suited to understand when surveillance is necessary to ensure our national security? While these questions are constructed differently, disputes involving privacy and security can utilize either one. Yet the interchangeability of these questions should not be taken to mean that their construction is neutral. Indeed, the choice of which question to ask may predetermine the outcome of the dispute.

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