Introduction To Privacy Law Richard Warner

Informational Privacy Our focus will be on informational privacy. Informational privacy consists in the ability to control  what information others obtain about you, and  what they do with that information. Other types of privacy:  Spatial privacy: the ability to control intrusions into certain places.  Decisional privacy: the ability to avoid intrusions into one’s decisions.

An Overview One way to get an overview is to consider four types of things we can do in regard to information.  Collection  Processing Storage Aggregation Analysis  Use Primary Secondary  Distribution

Activities CollectionProcessing Use Distribution Intrusion upon seclusion Public disclosure of private facts Misappropriation False light

The Response to Technology Computers and the Internet have greatly increased our ability to collect, process, use, and distribute information. The traditional privacy torts illustrate the issues this raises.

Misappropriation The tort of misappropriation singles out those aspects of my identity—my “name or likeness”—that others cannot use for their benefit without my consent. Is the profile created by analysis of purchasing information such an aspect?  Dwyer v. American Express answers “no.” But the case confuses a person name with the profile created by analysis.  What profiles can be created?  How can they be used?  By whom?

Efficiency Versus Privacy Businesses collect information because, other things being equal, more relevant information allows them to more efficiently achieve their goals.  Product development, marketing, price discrimination, extension of credit, and so on. Efficiency matters. Protecting privacy typically means less efficiency in regard to business goals.

How Do We Make the Tradeoff? How to make the tradeoff between business efficiency and privacy? This is currently a matter of considerable controversy. The same controversy arises in the case of the other privacy torts.

Intrusion Upon Seclusion Does DoubleClick intrude upon seclusion when it obtains information when it deposits on your hard drive to collect information?  The cookie is deposited without your consent.  Is the information “private”? A French court has held such cookies violate fundamental privacy rights. The US has not taken this position.  In Re DoubleClick.

Public Disclosure of Private Facts Does ChoicePoint commit the tort of public disclosure if it sends an arrest report of a job applicant to an employer even though the report had been officially expunged?  It is true that the applicant had been arrested.  The record was just officially expunged.  But ChoicePoint is not a governmental agency.  Is it highly offensive to a reasonable person that the employer obtain the record?

How Should The Law Respond? The law needs to respond to the changes technology has caused. The critical question about privacy law is not what the law is but what it should be?