Privacy in the Information Age

1 February

• According to Warren and Brandeis, the right to privacy is grounded in the right to be let alone. A right to be free from publicity.
• Now remember that when Prosser writes, it's 1960: cold war times. Is law driving the discussion or reflecting what is going on? Anyway, states are all over the board here: some are finding a common law right, some are writing statutes. Prosser is trying to bring order to this.
  1. Intrusion on solitude. This was the Warren & Brandeis issue
     • Intrudes
     • On the provate affairs
     • Highly offensive to a reasonable person
  2. Public disclosure of private facts. We need
     • Publicity
     • Highly offensive
     • Not a legitimate concern to the public
  3. Putting the victim in a false light. Has to be:
     • Highly objectionable to a reasonable person
     • Proven to be false
     • Known to be false by the publisher
  4. Appropriation of identity.
  Prosser says we need this taxonomy because just the idea of "being left alone" is not concrete enough to be workable. We want ideas that we can actually apply to facts.

  Prosser goes through an shows how prior concepts aren't enough to protect the privacy interest: property rights, defamation, etc.

• Bio of Sidis. It's easy to form a psychological picture of this unusual person. Does somebody who was ever in the public view ever regain control over their private facts (cause of action #2, above)?
• If we make this about emotional harm, then whoever has the saddest story gets the most remedy; we want to make this about control of your information.
• Are privacy laws a good way to advance a moral interest? We have "highly offensive:" that's a value judgment, of course. Is that even a viable standard nowadays (somebody is offended by everything). Do privacy laws reflect society's judgments, or do they control them?
• Compare causes #1 and #3, above. How do "private affairs" line up with "not of legitimate concern to the public?" Probably just about the same.
• Cox v. Cohn: head-on clash between right to privacy and 1A/14A freedom of press to publish. The press is sort of like the 4th branch of government: checking on how the others are working, and bringing transparency. Would this have come out differently had the victim still been alive?
• Melvin v. Reid: this is the case with the former prostitute who had reformed and was living a life of virtue. Isn't she just hiding the facts about herself (as Posner says)?
• Costs of privacy: locks on doors, shades on windows, etc.
• Non-consequentialism (e.g., social contract, Kantian, libertarian) vs. consequentialism (e.g. utilitarianism). What is the purpose of government? Under libertarianism, the maximization of some utility is not a justification for abolishing some right.

  So one theory (Rose): government is first and foremost to preserve the liberty of citizens, and second to maximize the circumstances of society's poorest members.