Privacy in the Information Age

1-25-09

• Chris Ashley: UW System.
• Kellie Krake: OPD.
• Handout 1: A little quiz:
  1. Brandeis & Warren
  2. Not explicitly-- emanations and penumbras
  3. Common law, constitution (4A, e.g.), statutes (HIPAA, e.g.), regulations (FTC regs, e.g.), policies, custom and practice
  4. Yes, in some circumstances (post-VA tech)-- there's a health and safety emergency exception to FERPA
  5. Yes. But what is "your garbage?" Stuff that is out on your curb.
  6. No.
  7. Well, EU is more comfortable with surveillance in general. And it's harder to recover for libel. Different conceptions, maybe, of what should be private. Canada is pretty strong with privacy: Ontario filed the suit against Facebook.
  8. Probably so. You can't wiretap people, though. But maybe just in terms of volume of information.
  9. You don't check all your privacy rights at the door (see O'Connor v. Ortega later in the course).
• Handout 2: some scenarios for discussion. When you see a potential violation of privacy, does it depend on the kind of information at issue, the means used to get at it, whether the custodian is appropriately guarding it? Does privacy protect your stuff, or information about you, etc.? Does it matter if it's a type of incursion that we're desensitized to (as opposed to something that seems creepy)?
• Do I as a homeowner decide what my privacy interests are? Consider the burglar who steals a TV vs one who steals your underpants. One is certainly a more private possession. But maybe it's society.
• Warren & Brandeis
  They survey the current landscape, and find it wanting, so they try to create a new substantive right. Basically, they're offering an explanation of why some things work.

  They look at contracts (no privity, so that fails), copyrights (only protects monetary value, and only with things that actually are published, and also you can't copyright facts), assault/battery, libel/defamation (but this isn't just about harm to reputation), nuisance, etc. Technology is now enabling people to do things that existing remedies don't really address.

  Finally, the come up with the right to be let alone. And the right of the "inviolate personality." The right to be left alone is both too broad (i.e., assault and murder aren't substantially privacy issues) and too narrow (i.e., doesn't cover passive surveillance violations) to accurately cover privacy. And "inviolate personality" is never really defined.

  It's a good idea to think of this article in the context of 1890: there are economic and class developments under the surface-- so once again privacy is dependent on context.

• Rosen
  The argument about prejudgment is pretty unpersuasive. You don't have a right not to have people draw unreasonable conclusions based on misleading evidence.

  Some pretty good thoughts, though, on what privacy is, as distinct from other rights.

• Note that in the UK, violation of privacy is actionable. It's much stricter there than here.