Privacy Law Outline

INFORMATION PRIVACY

Final Exam Outline

Yoo & Steinfeld

Spring 2015

I. Introduction

Basic Issues

Common law

· Interest grew in privacy because of

o Sensationalistic journalism

o Technological developments

Warren and Brandeis’ particular conception in The Right to Privacy

· Motivation behind the article: gossip columns

o By making private information public, gossip columns waste people’s time

o Social phenomenon. Compromises character of society. Creates a bad state in the world

o What happens to the individual (reputation) is secondary to what happens to overall society, according to article

· Multiple justifications for protecting privacy, depending on what you protect, how you protect, how strongly you protect, and what other values you trade off with

· Warren and Brandeis see a social ill and they want the law to adapt

o But historically there was no cause of action exactly for this

· Talks about implied contracts – confidentiality can be implied in the absence of an explicit contract by virtue of relationship

o Tort law? Property law?

o Usually turn to tort if you don’t know who you’re in a relationship with

· Wanted to protect certain private facts

· Advocated recognizing new cause of action

Puzzles

· Immediately recognized exception for public figures

· Justified by negative impact on broader society

o Former justification is based on personality/dignity

o Personality has both a absolutist and consequentialist justification

· Physical places. Should the right to be protected be recognized here?

o Certain places (i.e. the home) are sacred

· Are there rights that shouldn’t be waived at all? (Paternalistic)

o Understanding what you’re protecting and why determines what you do to it.

Privacy in general

· What is protected:

o Private places

o Certain private information

o Certain types of people

o Ability to control presentation of self

o Quantity/utility of information

o Commercial harm

· Against government or corporations

· Against what types of acts

o Harm

§ Damage to social status

§ Revelation of private people

§ Revelation of private facts

§ Right to be left alone

o Disclosure

o Commercial disadvantage

o Increased risk of harm

o Durability of information

· Enforced how

o Damages vs. injunctions

o Inalienability/reversion

§ Can you take things back? After death?

Consider the following motivating examples that raise different issues. Should the following be protected? Why?

· Diary

· location information

· erroneous credit score

· unrevealed covert surveillance

· right to be forgotten?

Theoretical perspectives on privacy law

Alan Westin, Privacy and Freedom

· Balance desires for privacy with desires for communication

· Four basic states of individual privacy

o Solitude

§ Individual is separated from the group and free from the observation of others

§ Most complete state of privacy

o Intimacy

§ Acting as part of a small unit and is allowed to exercise corporate seclusion so that it may achieve a close, relaxed, and frank relationship between two or more individuals

o Anonymity

§ Individual is in public places or performing public acts but still seeks and finds freedom form identification or surveillance

§ Does not expect to be identified and held to the full rules of behavior and role that would operate if he were known to those observing him

§ Or anonymity is idea of publishing of ideas anonymously

o Reserve

§ Most subtle

§ Creation of a psychological barrier against unwanted intrusion

· Four headings

o Personal autonomy

§ Development of individuality

§ Individual’s sense that it is he who decides when to go public is crucial aspect of his feeling of autonomy

§ Individuality important in democratic societies since independent thought, diversity of views, non conformity are considered desirable

o Emotional release

§ Individual plays many different roles throughout the day and needs time to be himself

§ Permissible deviations—don’t punish every deviation from laws or norms; otherwise so many people would be under organizational discipline or jail

§ Safety-value—be able to comment on things without being held responsible for such comments

o Limited and Protected Communication

§ Provides the individual with opportunities he needs for sharing confidence and intimacies with those he trusts

§ Wants to secure counsel form person with whom he does not have to live daily after disclosing his confidence

Julie Cohen Examined Lives: Information Privacy and The Subject as Object

· Respect for the fundamental dignity of persons

· Autonomy requires zone of relative insulation from outside scrutiny and interference—engage in conscious construction of self

· Pervasive monitoring will incline choices towards the bland an the mainstream

Anita L. Allen, Coercing Privacy

· Can’t force privacy on people especially if conduct does not harm others

· Seems our culture is learning to be happy while being an open book

· Privacy not an option good but precondition of a liberal egalitarian society

Critics of Privacy

Richard Posner, The Right of Privacy (1978)

· Does privacy allow you to mislead others?

· Should you be allowed to pry in order to have a more informed POV?

·

Fred Cate, Principles of Internet Privacy (2000)

· The free flow of information is highly important

o Self-governance via free and open expression. Generates practical benefits, i.e. delivering the right products and services to the public. Access to consumer info makes it possible for distance companies to make rational decisions about doing business with individuals.

Fair information practices and other sources of privacy law

Concerns

· Private facts

o Prior criminal convictions?

o Dependent on context?

· Protection against prejudice

· Ability to control info about yourself

· Efficiency

· Public health

· Danger of incomplete/out of context information

Lake v. Wal Mart (1998)

· Two women go on vacation