Privacy Law
University of Washington
Michael Hintze
Fall 2016
What is Privacy?
Historical and philosophical background
Warren and Brandeis, The Right to Privacy
Identified a problem (instantaneous photography, obnoxious journalism) and the concept of a “right to privacy”
Drew analogies to current law:
Slander / Libel
IP (literary/artistic property/wrongful publication)
Contract (but ultimately rejected this analogy because it doesn’t extend to interactions between strangers)
Article argued that this should be extended to other types of publication (photography / graphic descriptions of private matters)
Noted limitations when information is of legitimate public interest
As tech. advances, the need for privacy has increased. The authors were concerned with the role of new technology and legal and social norms not keeping pace.
Many concepts / concerns are still relevant:
Role of technology / social norms
Adapting existing law to address new technology / business models
Privacy a mainly a concern of the wealthy?
Concepts of “Privacy”
Withdrawal from public life
Personal autonomy
Freedom from intrusion (e.g., telemarketing)
Keeping secrets
Control over information (collection v. use)
Collection
solitude, intimacy, anonymity
notice and consent
Use
typical US approach
Does control place too much burden on consumer? Is control realistic or desirable? Is choice/consent a fiction? Should you be able to trade away your privacy?
Solove, A Taxonomy of Privacy
Information collection
Surveillance – watching, listening, or recording activities.
Interrogation – questioning or probing for information.
Information processing
Aggregation – combination of various pieces of data about a person.
Identification – linking information to particular individuals.
Insecurity – carelessness in protecting stored information from leaks and improper access.
Secondary use – use of information collected for one purpose for a different purpose without the data subject’s consent.
Exclusion – failure to allow the data subject to know about the data that others have about her and participate in its handling and use.
Information dissemination
Breach of confidentiality – breaking a promise to keep a person’s information confidential.
Disclosure – revelation of truthful information about a person that impacts the way others judge her character.
Exposure – revealing another’s nudity, grief, or bodily functions.
Increased accessibility – amplifying the accessibility of information.
Ex: Divorce records: used to have to go to court, now you can just search online.
Blackmail – threat to disclose personal information.
Appropriation – use of the data subject’s identity to serve the aims and interests of another.
Ex: using someone's image for commercial purpose
Distortion – dissemination of fal
ends to focus more on collection
Might depend on which harm
Comprehensive approaches to privacy law (EU) v. issue or sector specific approaches (US)
Fair information practice principles (FIPPs) as a framework (and shortcut) for analyzing legal obligations
Good shortcut/framework
Comparison CHART: see slide
Privacy law often lags behind technology, but it also evolves
Lawyers face the challenge of applying laws to tech. and scenarios that were not contemplated by the drafters
Trends toward broader application and more compliance obligations (both procedural and substantive)
Privacy law as a distinct area of study and practice is relatively new, and it is rapidly growing and changing
U.S. Privacy Torts
Prosser’s Four Privacy Torts
All four privacy torts can be characterized as a right to be let alone.
All incorporate a notion of control in that consent is a defense (and notice is essential to informed consent).
Not all fragmentation is bad. There are many different privacy interests (as shown in Dan Solove’s “Taxonomy” paper), and it often makes sense to address them differently.
