1. Privacy: Law, Values, Norms
Richard Warner

2. The Expansion of Privacy Law
Our taxonomy shows that privacy law has expanded well beyond the common law torts.
My claim: this expansion creates a need for new norms relevant to privacy.
To see why this is true, we need to see why privacy law in the past focused primarily on dissemination and somewhat on monitoring.

3. Privacy in the Past
In the recent past, our ability to collect and collect and process information was relatively limited.
Consequently, what each of us thought ought to be private could, through our own efforts, be kept private to a considerable extent.
Consequently, privacy law focused primarily on dissemination and slightly on monitoring.

4. The Common Law Torts
The common law privacy torts reflect this background. Only one tort is concerned with monitoring:
Intrusion into seclusion.
The other three concern dissemination:
Public disclosure of private facts,
False light,
Misappropriation of a name or likeness.
Misappropriation protects one’s financial interest in one’s name or likeness, so the first two really concern the disclosure of information.

5. “Reasonableness” and Norms
To see the need for new norms, consider the role of reasonableness in the privacy torts:
Intrusion into seclusion: Intentional intrusion into the seclusion of another which is highly offensive to a reasonable person.
Public disclosure: disclosure of private facts which is highly offensive to a reasonable person.
False light: Use of a name or identifying information, which would lead a reasonable person to believe falsely that the individual has been engaged in criminal or morally reprehensible conduct.

6. Values and Norms
We assess reasonableness in light of values and norms.
To value X is to see X as worth realizing for its own sake.
A norm is a regularity in behavior.
Marking poisons with a skull and crossbones is a norm we have because we value human life.
The key point about norms: norms typically resolve conflicts between competing values.
This is what makes norms particularly important in regard to privacy.

7. Norms and Value Conflict
Three examples:
You are making a comment during a roundtable discussion. How long should you talk?
You enter a crowed elevator. Where should you stand?
Two strangers—a lawyer with a large briefcase in a great hurry and a mother carrying a young baby—meet in a narrow corridor. Who makes what effort to allow the other to pass?

8. Norms and Privacy
Norms are important to privacy. To protect my privacy, I need to know what you are likely to do. Norms answer this question.
Seclusion: I need to know how hard you will try to intrude in order to know what steps I must take.
Public disclosure: I need to know what you are likely to disclose to know how careful I need to be about what I allow you to learn.
False light: To know whether I have been placed in a false light I need to know how likely others are to believe negative facts about me.

9. Need for New Norms
We need new norms in the areas indicated by the red triangles in the taxonomy given on the next slide.
The question is, how are we to create the necessary norms?

10. *with the exception of intrusion on seclusion
Activities affecting informational privacy
Collection
dissemination
Processing
Monitoring
questioning
Aggregation
Secondary use
Exclusion
Proper
Contract
No-contract
Possibly, public disclosure of private facts
Common law
Statutes
CFAA
Trespass
ECPA
Intrusion on seclusion
New developments*
HIPAA
GLB
Improper
Public disclosure of private facts
Misappropriation
False light
Unauthorized disclosure of sensitive information
Breach of confidence
Common law
Statutes
*with the exception of intrusion on seclusion
CFAA
ECPA
Negligence
HIPAA
GLB

11. A Brief Overview of Norms
The nature of norms has been much discussed in philosophy and sociology.
The following brief overview identifies aspects of norms that may prove helpful to us.

12. Norms Defined
A norm is
a sanction-supported behavioral regularity in a group of people, where
the regularity exists in part because each group member thinks each group member ought to act in accord with that regularity.
Ought: Prudential versus justified in light values the person accepts.
In all cases, a prima facie ought.

13. Legally-Implemented Norms
The law can establish norms. This point will be important later in discussing privacy.
An example: a seller may disclaim consequential damages
This is a sanction-supported regularity
sellers regularly disclaim consequential damages, and
courts regularly enforce the disclaimers.
But do buyers think the ought to abide by it?
How could they? Most do not even know what it means.

14. Legally-Implemented Norms
People think that they ought to abide by the law.
The disclaimer of consequential damages is a legally enforceable provision,
So buyers think that they ought to abide by it.
In the sense that, if I think all men are mortal, then I think Socrates is mortal.

15. Value-Justified Norms
We typically conform to norms without much thought.
The elevator example.
You could--after sufficient, adequately informed, and unbiased reflection—justify the norm.
Call such norms value-justified.
Not all norms are value-justified.