Mapping online privacy

Northwestern University Law Review

Volumn 104, Issue 2, 2010, Pages 477-516

  Lipton, Jacqueline D ^a  

^a Maastricht University   (United States)

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EID: 78751541477     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (299)

1. Scalia's comments are reported in Kashmir Hill, Justice Scalia Responds to Fordham Privacy In-vasion!, ABOVE THE LAW, Apr. 29, 2009, http://abovethelaw.com/2009/04/justice_scalia_responds_to_for.php.
2. Daniel Solove, Justice Scalia's Dossier: Joel Reidenberg Responds, CONCURRING OPINIONS, May 1, 2009, http://www.concurringopinions.com/archives/2009/05/justice_scalias_3.html [hereinafter Posting of Daniel Solove].
3. Daniel Solove, Justice Scalia's Dossier: Joel Reidenberg Responds, CONCURRING OPINIONS, May 1, 2009, http://www.concurringopinions.com/archives/2009/05/justice_scalias_3.html [hereinafter Posting of Daniel Solove].
4. Kashmir Hill, Justice Scalia Responds to Fordham Privacy In-vasion!, ABOVE THE LAW, Apr. 29, 2009, http://abovethelaw.com/2009/04/justice_scalia_responds_to_for.php.
5. Noam Cohen, Law Students Teach Scalia About Privacy and the Web, N.Y. TIMES, May 18, 2009, at B3.
6. Kashmir Hill, Justice Scalia Responds to Fordham Privacy In-vasion!, ABOVE THE LAW, Apr. 29, 2009, http://abovethelaw.com/2009/04/justice_scalia_responds_to_for.php.
7. Posting of Daniel Solove, Justice Scalia's Dossier: Joel Reidenberg Responds, CONCURRING OPINIONS, May 1, 2009, http://www.concurringopinions.com/archives/2009/05/justice_scalias_3.html [hereinafter Posting of Daniel Solove].
8. Kashmir Hill, Justice Scalia Responds to Fordham Privacy In-vasion!, ABOVE THE LAW, Apr. 29, 2009, http://abovethelaw.com/2009/04/justice_scalia_responds_to_for.php.
9. Posting of Daniel Solove, Justice Scalia's Dossier: Joel Reidenberg Responds, CONCURRING OPINIONS, May 1, 2009, http://www.concurringopinions.com/archives/2009/05/justice_scalias_3.html [hereinafter Posting of Daniel Solove].
10. Posting of Daniel Solove, Justice Scalia's Dossier: Joel Reidenberg Responds, CONCURRING OPINIONS, May 1, 2009, http://www.concurringopinions.com/archives/2009/05/justice_scalias_3.html [hereinafter Posting of Daniel Solove].
11. see also Noam Cohen, Law Students Teach Scalia About Privacy and the Web, N.Y. TIMES, May 18, 2009, at B3. (using the phrase "teaching moment" to describe "lessons learned from real life that help illuminate an academic subject").
12. Kashmir Hill, Justice Scalia Responds to Fordham Privacy In-vasion!, ABOVE THE LAW, Apr. 29, 2009, http://abovethelaw.com/2009/04/justice_scalia_responds_to_for.php. ("Prof. Reidenberg's exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any." (quoting Justice Scalia) (internal quotation marks omitted)).
13. Posting of Daniel Solove, Daniel Solove, Justice Scalia's Dossier: Joel Reidenberg Responds, CONCURRING OPINIONS, May 1, 2009, http://www.concurringopinions.com/archives/2009/05/justice_scalias_3.html [hereinafter Posting of Daniel Solove].
14. see also Noam Cohen, Law Students Teach Scalia About Privacy and the Web, N.Y. TIMES, May 18, 2009, at B3. ("Mr. Reidenberg was speaking [at an academic conference] about the loss of 'practical obscurity,' that is, the idea that certain personal information may always have been publicly available-down at the courthouse, say-but in reality was very hard to discover and disseminate.").
15. Kashmir Hill, Justice Scalia Responds to Fordham Privacy In-vasion!, ABOVE THE LAW, Apr. 29, 2009, http://abovethelaw.com/2009/04/justice_scalia_responds_to_for.php. ("I stand by my remark at the Institute of American and Talmudic Law conference that it is silly to think that every single datum about my life is private." (quoting Justice Scalia) (internal quotation marks omitted)).
16. See, e.g., Kashmir Hill, Justice Scalia Responds to Fordham Privacy In-vasion!, ABOVE THE LAW, Apr. 29, 2009, http://abovethelaw.com/2009/04/justice_scalia_responds_to_for.php.
17. Posting of Daniel Solove, Justice Scalia's Dossier: Joel Reidenberg Responds, CONCURRING OPINIONS, May 1, 2009, http://www.concurringopinions.com/archives/2009/05/justice_scalias_3.html [hereinafter Posting of Daniel Solove].
18. see also Noam Cohen, Law Students Teach Scalia About Privacy and the Web, N.Y. TIMES, May 18, 2009, at B3. ("Professor Reidenberg's comments at the conference were picked up by a Web site, Above the Law, and the genie was out of the bottle, speeded on its way with the headline 'What Fordham Knows About Justice Scalia.'").
19. DAVID KESMODEL, THE DOMAIN GAME 126 (2008) ("Web 2.0 was a buzz word used to describe a new wave of Web businesses that leveraged social networking, user-generated content, and other forms of collaboration and information-sharing on the Internet.")
20. JANET LOWE, GOOGLE SPEAKS 294 (2009) (defining "Web 2.0" as "[a] term used to describe an evolving generation of a participatory Web. Web 2.0 describes the proliferation of interconnectivity and social interaction on the World Wide Web").
21. Of course, privacy law is problematic in the best of times because it is aimed at restricting truthful speech about individuals, often in the face of powerful speech protections such as the First Amendment. Even in jurisdictions with strong legal protections for personal privacy, the balance between privacy and speech is difficult for courts. See, e.g., Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [8]-[15], [2008] All E.R. (D) 322 (Eng.) (describing balance between free speech and privacy under Articles 8 and 10 of the European Convention on Human Rights and Fundamental Free-doms).
22. For example, privacy law is generally a matter of state law in the United States. See MATTHEW BENDER & CO, PERSONAL INJURY: ACTIONS, DEFENSES, DAMAGES § 120.01[1] (2010) (listing the various state actions for privacy throughout the United States).
23. This is similar to the approach taken by Professor James Grimmelman in his recent attempt to map a law of Internet search engines. See James Grimmelman, The Structure of Search Engine Law, 93 IOWA L. REV. 1, 15 (2007) ("The set of laws potentially applicable to search may seem bewilderingly large. It has, however, a recurring deep structure that becomes evident if we focus on four concepts: the actors involved, the information flows among them, the interests that they bring to search, and the legal theories that they use to vindicate their interests.").
24. DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION].
25. HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE 280 (2006) (describing "blogging" as "the term initially referred to a technological platform that allowed for easy and rapid updating of Web content. Increasingly, it has come to refer to a mode of publication of grass-roots origin that responds to information circulated either by other bloggers or by the mainstream me-dium")
26. JANET LOWE, GOOGLE SPEAKS 294 (2009) (defining "Web 2.0" as "[a] term used to describe an evolving generation of a participatory Web. Web 2.0 describes the proliferation of interconnectivity and social interaction on the World Wide Web")., at 288 (defining "blog" as "[s]hort for Web log, or a string of journal entries posted on a Web page")
27. JOHN PALFREY & URS GASSER, BORN DIGITAL: UNDERSTANDING THE FIRST GENERATION OF DIGITAL NATIVES 27 (2008) (describing a "blog" as "a very simple Web page with a mix of text and photos").
28. JANET LOWE, GOOGLE SPEAKS 294 (2009) (defining "Web 2.0" as "[a] term used to describe an evolving generation of a participatory Web. Web 2.0 describes the proliferation of interconnectivity and social interaction on the World Wide Web")., at 294 (defining "wikis" as "[a] collection of Web pages that enables any-one who accesses them to contribute or modify content, using a simplified computer language")
29. DON TAPSCOTT & ANTHONY D WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 13 (2008) (defining a "wiki" as "software that enables users to edit the content of Web pages").
30. JANET LOWE, GOOGLE SPEAKS 294 (2009) (defining "Web 2.0" as "[a] term used to describe an evolving generation of a participatory Web. Web 2.0 describes the proliferation of interconnectivity and social interaction on the World Wide Web")., at 292 (describing "social networking" as "[w]ebsites that allow people to share ideas, information, and images and to form networks with friends, family, or other like-minded individuals")
31. DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 26 (describing the concept underlying social networking sites as enabling networks of friends and acquaintances to digitally link their profiles, share personal information, and communicate with each other).
32. JENKINS, HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE 280 (2006) (describing "blogging" as "the term initially referred to a technological platform that allowed for easy and rapid updating of Web content. Increasingly, it has come to refer to a mode of publication of grass-roots origin that responds to information circulated either by other bloggers or by the mainstream me-dium"), at 289 ("Massively Multiplayer Online Role-Playing Games, an emerging genre that brings together thousands of people interacting through avatars in a graphically rich fantasy environment.").
33. TAPSCOTT & WILLIAMS, DON TAPSCOTT & ANTHONY D WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 13 (2008) (defining a "wiki" as "software that enables users to edit the content of Web pages")., at 242-43 (describing social interactions between geo-graphically dispersed coworkers whilst playing the online game Battlefield 2).
34. DANIEL SOLOVE, THE DIGITAL PERSON 1-7 (2004) [hereinafter SOLOVE, THE DIGITAL PERSON] (describing the problem of "digital dossiers" online).
35. See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm [hereinafter Data Protection Directive] ("The Commission shall examine, in particular, the application of this Directive to the data processing of sound and image data relating to natural persons and shall submit any appropriate proposals which prove to be necessary, taking account of developments in information technology and in the light of the state of progress in the information society.").
36. Twitter is a digital messaging service that describes itself as "a service for friends, family, and co-workers to communicate and stay connected through the exchange of quick, frequent answers to one simple question: What are you doing?" Twitter.com, What is Twitter?, http://web.archive.org/web/20080724155350/http://twitter.com/ (last visited May 26, 2010). Twitter is described in Wikipedia.org as "a social networking and microblogging service that enables its users to send and read messages known as tweets. Tweets are text-based posts of up to 140 characters displayed on the author's profile page and delivered to the author's subscribers who are known as followers." Wikipedia, Twitter, http://en.wikipedia.org/wiki/Twitter (last visited May 26, 2010). Twitter is technically both an informa-tion gathering and dissemination technology, as the recording and distribution of a "tweet" both gathers and distributes information about something or someone almost simultaneously. A further example of fast and easy digital recording technologies is found in the context of Facebook quizzes. See Ani L. Schwartz, Facebook: Protect My Privacy, SOCIAL ENTREPRENEURSHIP, Sept. 16, 2009, http://socialentrepreneurship.change.org/actions/view/facebook_protect_my_privacy (describing threats to privacy posed by Facebook quizzes).
37. Posting of Daniel Solove, Justice Scalia's Dossier: Joel Reidenberg Responds, CONCURRING OPINIONS, May 1, 2009, http://www.concurringopinions.com/archives/2009/05/justice_scalias_3.html [hereinafter Posting of Daniel Solove].
38. DANIEL SOLOVE, MARC ROTENBERG & PAUL SCHWARTZ, INFORMATION PRIVACY LAW 33-34 (2d ed. 2006) [hereinafter SOLOVE ET AL., INFORMATION PRIVACY LAW] (noting that the "reasonable expectation of privacy" doctrine is derived originally from the Fourth Amendment of the U.S. Constitution).
39. Patricia Sánchez Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 18 (2007) [hereinafter Sánchez Abril, Recasting Privacy Torts] ("In deciding privacy tort claims, courts are charged with determining whether there was a reasonable expectation of privacy in the space in question.")
40. see also RESTATEMENT (SECOND) OF TORTS § 652D cmt. c (1977) (discussing the tort of public disclosure of private facts and how the rule applies only against "unreasonable publicity, of a kind highly offensive to the ordinary reasonable man").
41. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm [hereinafter Data Protection Directive] ("The Commission shall examine, in particular, the application of this Directive to the data processing of sound and image data relating to natural persons and shall submit any appropriate proposals which prove to be necessary, taking account of developments in information technology and in the light of the state of progress in the information society.").
42. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46 at art. 3(1).
43. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46 at art. 2(a) ("'[P]ersonal data' shall mean any information relating to an identified or identifiable natural person ('data subject'); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity.").
44. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46 at art. 2(b) ("'[P]rocessing of personal data' ('processing') shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.").
45. See Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46 at art. 2(d) & (e) (defining, respectively, "controller" and "processor" of data terms as "a natural or legal person, public authority, agency or any other body").
46. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46 at art. 2(c).
47. See Article 29 Data Protection Working Party, Opinion 5/2009 on Online Social Networking, 01189/09/EN/WP.163 (June 12, 2009), available at http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf [hereinafter Data Protection Working Party] (investigating the application of the Directive to online social networking activities).
48. For example, in a recent case of cyberbullying, a court struggled to apply computer trespass pro-visions of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030 (2006), to conduct involving the creation of a fictitious persona on the Web 2.0 social networking service MySpace to harass and bully a teenage girl, Megan Meier, ultimately culminating in her suicide. Initially, the court held that the provisions of the CFAA would cover conduct of a MySpace user that contravened MySpace's posted terms of service as the basis of violating the CFAA's felony provision, id. § 1030(c)(2)(B)(ii), but the court later held that using CFAA's misdemeanor provisions to enforce online terms of use would make the statute void for vagueness. United States v Drew, 259 F.R.D. 449, 451, 464 (C.D. Cal. 2009).
49. JOHN PALFREY & URS GASSER, BORN DIGITAL: UNDERSTANDING THE FIRST GENERATION OF DIGITAL NATIVES 27 (2008), at 28-29 (describing Second Life as a promising and popular virtual world where users can tailor the appearance of their avatars including skin color and the shape of their nose).
50. JOHN PALFREY & URS GASSER, BORN DIGITAL: UNDERSTANDING THE FIRST GENERATION OF DIGITAL NATIVES 27 (2008), at 28-29 (describing Second Life as a promising and popular virtual world where users can tailor the appearance of their avatars including skin color and the shape of their nose). at 20 (describing avatars as fake personas online which enable an individual to try out a new identity).
51. JOHN PALFREY & URS GASSER, BORN DIGITAL: UNDERSTANDING THE FIRST GENERATION OF DIGITAL NATIVES 27 (2008), at 28-29 (describing Second Life as a promising and popular virtual world where users can tailor the appearance of their avatars including skin color and the shape of their nose). at 62 (tagging a nontext file allows it to be more easily searchable via the text in the tag)
52. JANET LOWE, GOOGLE SPEAKS 294 (2009)., at 292 (defining "tagging" as "[n]aming an image, file, or something on the Inter-net. It needs a name before you can search for it.").
53. Case C-101/1, Criminal Proceedings Against Bodil Lindqvist, 2003 E.C.R. I-12971, ¶ 47, avail-able at http://curia.europa.eu/jurisp/cgibin/gettext.pl?lang=en&num=79968893C19010101&doc=T&ouvert=T&seance=ARRET.
54. Case C-101/1, Criminal Proceedings Against Bodil Lindqvist, 2003 E.C.R. I-12971, ¶¶ 1-6.
55. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, at art. 3(2) ("This Directive shall not apply to the proc-essing of personal data ... by a natural person in the course of a purely personal or household activity.").
56. Data Protection Working Party, See Article 29 Data Protection Working Party, Opinion 5/2009 on Online Social Networking, 01189/09/EN/WP.163 (June 12, 2009), available at http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf [hereinafter Data Protection Working Party] (investigating the application of the Directive to online social networking activities)., § 3.1.2 (noting that where an online social net-work member extends dissemination of information beyond selected friends to the public at large, she may become a "data controller" for the purposes of the Directive, and be subject to all of its restrictions on processing personal information).
57. Of course, distinctions between open and closed networks should not be overstated, as it is relatively easy for information disclosed in a closed network to go viral and become publicly accessible.
58. Lindqvist, 2003 E.C.R. I-12971, ¶ 47.
59. For a more detailed discussion on how the Directive might apply to these kinds of file formats, see Jacqueline D. Lipton, Digital Multi-Media and the Limits of Privacy Law, 42 CASE W. RES. J. INT'L L. 551 (2010).
60. SOLOVE ET AL., INFORMATION PRIVACY LAW 33-34 (2d ed. 2006) [hereinafter SOLOVE ET AL., INFORMATION PRIVACY LAW] (noting that the "reasonable expectation of privacy" doctrine is derived originally from the Fourth Amendment of the U.S. Constitution)., at 869 (describing the European Union's "omnibus" approach to protecting privacy).
61. SOLOVE ET AL., INFORMATION PRIVACY LAW 33-34 (2d ed. 2006) [hereinafter SOLOVE ET AL., INFORMATION PRIVACY LAW] (noting that the "reasonable expectation of privacy" doctrine is derived originally from the Fourth Amendment of the U.S. Constitution)., at 207 (noting the particular tension between privacy and the government's law enforcement activities).
62. Patricia Sánchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007) (describing the limits of American privacy tort law in the face of online social networking technologies) [hereinafter Sánchez Abril, (My)Space].
63. Patricia Sánchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007) (describing the limits of American privacy tort law in the face of online social networking technologies) [hereinafter Sánchez Abril, (My)Space].
64. see RESTATEMENT (SECOND) OF TORTS, §§ 652A-E (1977).
65. SOLOVE ET AL., INFORMATION PRIVACY LAW 33-34 (2d ed. 2006) [hereinafter SOLOVE ET AL., INFORMATION PRIVACY LAW] (noting that the "reasonable expectation of privacy" doctrine is derived originally from the Fourth Amendment of the U.S. Constitution)., at 207 (noting the particular tension between privacy and the government's law enforcement activities)., at 132 ("The privacy torts exist in an uneasy tension with the First Amendment.")
66. Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 STAN. L. REV. 1049, 1051-55 (2000) (suggesting that tortious approaches to protecting privacy cannot be reconciled with the First Amendment, but that contractual approaches may avoid this criticism)
67. Diane Leenheer Zimmerman, Is There a Right to Have Something to Say? One View of the Public Domain, 73 FORDHAM L. REV. 297, 348-49 (2004) ("[F]rom the birth of the common law right of privacy, courts recognized that there is a downside to granting individuals control over how others can use information about them. It significantly strips others of the wherewithal to form their own ideas, utilize their own observations, and communicate about these things with friends, colleagues, and fellow citizens. The fear of this unconstitutional consequence is why broad newsworthiness rules have cabined the tort al-most to the point of annihilation. This strongly suggests that the ability to use speech goods is a neces-sary element of what the First Amendment protects, and that, as a result, it is very risky to allow individuals to 'own' or control use of their life stories." (footnotes omitted)).
68. SOLOVE ET AL., INFORMATION PRIVACY LAW 33-34 (2d ed. 2006) [hereinafter SOLOVE ET AL., INFORMATION PRIVACY LAW] (noting that the "reasonable expectation of privacy" doctrine is derived originally from the Fourth Amendment of the U.S. Constitution)., at 207 (noting the particular tension between privacy and the government's law enforcement activities)., at 33 ("Although the United States Constitution does not specifically mention privacy, it has a number of provisions that protect privacy, and it has been interpreted as providing a right to privacy. In some instances, the First Amendment serves to safeguard privacy .... The Third Amendment protects the privacy of the home by preventing the government from requiring soldiers to reside in people's homes .... The Fourth Amendment pro-vides that people have the right 'to be secure in their persons, houses, papers, and effects, against unrea-sonable searches and seizures ....'").
69. SOLOVE ET AL., INFORMATION PRIVACY LAW 33-34 (2d ed. 2006) [hereinafter SOLOVE ET AL., INFORMATION PRIVACY LAW] (noting that the "reasonable expectation of privacy" doctrine is derived originally from the Fourth Amendment of the U.S. Constitution)., at 207 (noting the particular tension between privacy and the government's law enforcement activities)., at 132 ("The privacy torts exist in an uneasy tension with the First Amendment.")
70. SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 160 ("There is no easy solution to how to balance free speech with privacy and reputation .... Balancing free speech with privacy and reputation is a complicated and delicate task. Too much weight on either side of the scale will have detrimental consequences. The law still has a distance to go toward establishing a good balance.")
71. Volokh, Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 STAN. L. REV. 1049, 1051-55 (2000), at 1049
72. Diane Leenheer Zimmerman, Is There a Right to Have Something to Say? One View of the Public Domain, 73 FORDHAM L. REV. 297, 348-49 (2004), at 348-49.
73. Sánchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007), at 79 ("The torts of defamation-libel and slander-do not apply if the information published was true or opinion, however harrowing. Thus, if the disclosure is true but nonetheless embarrassing, or meant for other audiences, these dignitary torts are inapplicable." (footnote omitted)).
74. This may be gradually changing at least in some jurisdictions. See, e.g., Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [231], [2008] All E.R. (D) 322 (Eng.) (£60,000 damages awarded in breach of privacy action in the United Kingdom).
75. Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [225]-[26], [2008] All E.R. (D) 322 (Eng.) (noting appropriateness of taking plaintiff's own conduct into account in ascertaining privacy harm).
76. In re Doubleclick Inc. Privacy Litig., 154 F. Supp. 2d 497, 502-03 (S.D.N.Y. 2001) ("Cookies are computer programs commonly used by Web sites to store useful information such as usernames, passwords, and preferences, making it easier for users to access Web pages in an efficient manner.").
77. Whalen v. Roe, 429 U.S. 589, 591 (1977) (upholding legislation requiring government to retain records of prescriptions of certain controlled medications).
78. Whalen v. Roe, 429 U.S. 589, 591 (1977) (upholding legislation requiring government to retain records of prescriptions of certain controlled medications).
79. In re Doubleclick, 154 F. Supp. 2d at 510
80. Dwyer v. Am. Express Co., 652 N.E.2d 1351, 1354 (Ill. App. Ct. 1995).
81. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm [hereinafter Data Protection Directive] ("The Commission shall examine, in particular, the application of this Directive to the data processing of sound and image data relating to natural persons and shall submit any appropriate proposals which prove to be necessary, taking account of developments in information technology and in the light of the state of progress in the information society.")., at art. 7 (setting out the data subject's consent as necessary for processing personal data unless the processing can be justified by necessity relating to performance of a contract, compliance with a legal obligation of the data controller, and so on).
82. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm [hereinafter Data Protection Directive] ("The Commission shall examine, in particular, the application of this Directive to the data processing of sound and image data relating to natural persons and shall submit any appropriate proposals which prove to be necessary, taking account of developments in information technology and in the light of the state of progress in the information society.")., at art. 7 (setting out the data subject's consent as necessary for processing personal data unless the processing can be justified by necessity relating to performance of a contract, compliance with a legal obligation of the data controller, and so on). at art. 12 (requiring that data controllers provide access to personal information of data subjects).
83. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm [hereinafter Data Protection Directive] ("The Commission shall examine, in particular, the application of this Directive to the data processing of sound and image data relating to natural persons and shall submit any appropriate proposals which prove to be necessary, taking account of developments in information technology and in the light of the state of progress in the information society.")., at art. 7 (setting out the data subject's consent as necessary for processing personal data unless the processing can be justified by necessity relating to performance of a contract, compliance with a legal obligation of the data controller, and so on). at art. 6(1)(d) (requiring accuracy of data processed by data controllers).
84. See, e.g., Electronic Communications Privacy Act, 18 U.S.C. § 2510 (2006); Computer Fraud and Abuse Act, 18 U.S.C. § 1030 (2006).
85. RESTATEMENT (SECOND) OF TORTS §§ 652A-E (1977).
86. SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 202 ("[S]ocial network sites often have a very loose concept of 'friend.' The sites divide a person's social universe into 'friends' and everybody else.").
87. CORY DOCTOROW, CONTENT 183 (2008) ("It's socially awkward to refuse to add someone to your friends list-but removing someone from your friends list is practically a declaration of war.").
88. See Opinion 5/2009 on Online Social Networking, 01189/09/EN/WP.163 (June 12, 2009), available at http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf [hereinafter Data Protection Working Party] (investigating the application of the Directive to online social networking activities)., § 3.1.1 ("Typically, access to data (profile data, postings, stories ...) contributed by a user [of an online social networking service] is limited to self-selected contacts. In some cases however, users may acquire a high number of third party contacts, some of whom he may not actually know.").
89. See, e.g., JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008) (providing a formula for defining privacy rights).
90. See, e.g., DANIEL SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.").
91. See, e.g., Sánchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007) (describing the limits of American privacy tort law in the face of online social networking technologies) [hereinafter Sánchez Abril, (My)Space]., at 87
92. Patricia Sánchez Abril & Anita Cava, Health Privacy in a Techno-Social World: A Cyber-Patient's Bill of Rights, 6 NW. J. TECH. & INTELL. PROP. 244, 269-77 (2008)
93. Sánchez Abril, Recasting Privacy Torts, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 18 (2007) [hereinafter Sánchez Abril, Recasting Privacy Torts], at 27.
94. See, e.g., NEIL ROBINSON, HANS GRAUX, MAARTEN BOTTERMAN & LORENZO VALERI, REVIEW OF THE EUROPEAN UNION DATA PROTECTION DIRECTIVE, at vii (May 2009), available at http://www.rand.org/pubs/technical_reports/2009/RAND_TR710.pdf ("Overall, we found that as we move toward a globally networked society, the [Data Protection] Directive as it stands will not suffice in the long term. While the widely applauded principles of the Directive will remain as a useful front-end, they will need to be supported by a harms-based back-end in order to cope with the growing challenge of globalisation and international data flows.").
95. Samuel D. Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890).
96. Samuel D. Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. at 195 n.4 (citing THOMAS COOLEY, COOLEY ON TORTS 29 (2d ed. 1888)).
97. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 12-38.
98. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 15-18
99. Samuel D. Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, at 194 (quoting THOMAS M. COOLEY, COOLEY ON TORTS 29 (2d ed. 1888)).
100. SOLOVE, UNDERSTANDING PRIVACY, SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 18-21.
101. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 21-24.
102. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 24-29.
103. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 29-34.
104. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 34-37.
105. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 38.
106. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 38.
107. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 38-39.
108. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 38.
109. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 39.
110. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., At 105 (focusing on individual privacy rather that on an overching theory of privacy). 87 Of course, Professor Solove is not the first scholar to attempt a categorization of privacy harms. In 1960, Dean William Prosser pioneered this approach in his seminal article that became the basis for the privacy torts in the Restatement. See RESTATEMENT (SECOND) OF TORTS §§ 652A-E (1977)
111. William Prosser, Privacy, 48 CAL. L. REV. 383 (1960). In his article, Dean Prosser developed four distinct categories of privacy harm, which developed into the current privacy torts. They are: (a) intrusion into the plaintiff's seclusion; (b) public disclosure of private facts; (c) publicity which places the plaintiff in a false light; and (d) misappropriation of the plaintiff's name or likeness. Prosser, supra, at 389. Profes-sor Solove's theories are described here in preference to Dean Prosser's largely because Professor So-love's taxonomy is more readily applicable to the Internet age, while Dean Prosser's categorization scheme has caused some practical problems when applied to online conduct. These limitations have been recognized in recent scholarship
112. See Sánchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007) (describing the limits of American privacy tort law in the face of online social networking technologies) [hereinafter Sánchez Abril, (My)Space]., at 79 ("Prosser's four-fold privacy torts-intrusion upon seclusion, public disclosure of private facts, false light privacy, and appropriation-are ... fragile in the face of [online social network] disclosures." (footnote omit-ted))
113. Sánchez Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 18, at 12-27 (generally analyzing the short-comings of the public disclosure of facts tort in the of online social networking technologies).
114. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 105.
115. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 40.
116. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 40.
117. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 46-47.
118. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., At 49.
119. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., At 49.
120. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., At 49.
121. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 103-04.
122. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 103.
123. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 106-12.
124. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 112-17.
125. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 117-21.
126. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 121-26.
127. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 126-29.
128. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 129-33.
129. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 133-36.
130. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 136-40.
131. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 140-46.
132. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 146-49.
133. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 149-51.
134. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 151-54.
135. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 154-58.
136. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 158-61.
137. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 161-65.
138. See SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 165-70.
139. See Neil Richards & Daniel Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEO. L.J. 123, 173-81 (2007).
140. See Avner Levin & Patricia Sánchez Abril, Two Notions of Privacy Online, 11 VAND. J. ENT. & TECH. L. 1001, 1046-47 (2009).
141. See Patricia Sánchez Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 18 (2007) [hereinafter Sánchez Abril, Recasting Privacy Torts], at 3 ("Traditionally, privacy has been inextricably linked to physical space.").
142. See Sánchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007) (describing the limits of American privacy tort law in the face of online social networking technologies) [hereinafter Sánchez Abril, (My)Space]., at 83-87
143. Sánchez Abril & Cava, Sánchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007) (describing the limits of American privacy tort law in the face of online social networking technologies) [hereinafter Sánchez Abril, (My)Space]., at 269-77
144. Sánchez Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 18 (2007) [hereinafter Sánchez Abril, Recasting Privacy Torts] ("In deciding privacy tort claims, courts are charged with determining whether there was a reasonable expectation of privacy in the space in question."), at 3.
145. RESTATEMENT (SECOND) OF TORTS § 652D (1977) ("One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.").
146. Sánchez Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 18 (2007) [hereinafter Sánchez Abril, Recasting Privacy Torts] ("In deciding privacy tort claims, courts are charged with determining whether there was a reasonable expectation of privacy in the space in question."), at 28.
147. Sánchez Abril & Cava, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007) (describing the limits of American privacy tort law in the face of online social networking technologies) [hereinafter Sánchez Abril, (My)Space]., at 268.
148. See Lawrence Lessig, The Architecture of Privacy, 1 VAND. J. ENT. L. & PRAC. 56, 62-64 (1999)
149. Jacqueline D. Lipton, "We, the Paparazzi": Developing a Privacy Paradigm for Digital Video, 95 IOWA L. REV. 919 (2010).
150. See Jacqueline D. Lipton, "We, the Paparazzi": Developing a Privacy Paradigm for Digital Video, 95 IOWA L. REV. 919 (2010).
151. See Lawrence Lessig, The Architecture of Privacy, 1 VAND. J. ENT. L. & PRAC. 56, 62-64 (1999), at 62-64
152. Jacqueline D. Lipton, "We, the Paparazzi": Developing a Privacy Paradigm for Digital Video, 95 IOWA L. REV. 919 (2010).
153. See, e.g., NEIL ROBINSON, HANS GRAUX, MAARTEN BOTTERMAN & LORENZO VALERI, REVIEW OF THE EUROPEAN UNION DATA PROTECTION DIRECTIVE, at vii (May 2009), available at http://www.rand.org/pubs/technical_reports/2009/RAND_TR710.pdf, at 13 ("The Article 29 Working Party should expand liaisons with business representatives, civil society representatives and Non-Governmental Organisation communities.").
154. See Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [9], [2008] All E.R. (D) 322 (Eng.) (noting that modern privacy values are now as applicable between private actors as they historically were between individuals and public authorities).
155. See DANIEL SOLOVE, MARC ROTENBERG & PAUL SCHWARTZ, INFORMATION PRIVACY LAW 33-34 (2d ed. 2006) [hereinafter SOLOVE ET AL., INFORMATION PRIVACY LAW] (noting that the "reasonable expectation of privacy" doctrine is derived originally from the Fourth Amendment of the U.S. Constitution)., at 75 (noting historical concerns about privacy with respect to the media).
156. See DANIEL SOLOVE, MARC ROTENBERG & PAUL SCHWARTZ, INFORMATION PRIVACY LAW 33-34 (2d ed. 2006) [hereinafter SOLOVE ET AL., INFORMATION PRIVACY LAW] (noting that the "reasonable expectation of privacy" doctrine is derived originally from the Fourth Amendment of the U.S. Constitution). at 207 ("Throughout the twentieth century, technology provided the government signifi-cantly greater ability to probe into the private lives of individuals."). Note that at this point of the inquiry we are not yet talking about the activities that governments and the press undertake with this technology; that comes in the next dimension. We are simply identifying the actors in a privacy incursion, their relationships to each other, and importantly, how those relationships may be changing in a Web 2.0 society.
157. See, e.g., Whalen v. Roe, 429 U.S. 589, 591 (1977) (dealing with government-imposed legislation to collect certain sensitive information about drug prescriptions in a digital database); In re Double-click Inc. Privacy Litig., 154 F. Supp. 2d 497, 500 (S.D.N.Y. 2001) (involving the use of cookies to collect information on customer spending habits for online business use)
158. Dwyer v. Am. Express Co., 652 N.E.2d 1351, 1353 (Ill. App. Ct. 1995) (involving claims against American Express for the use of data related to the personal spending habits of its customers).
159. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm [hereinafter Data Protection Directive] ("The Commission shall examine, in particular, the application of this Directive to the data processing of sound and image data relating to natural persons and shall submit any appropriate proposals which prove to be necessary, taking account of developments in information technology and in the light of the state of progress in the information society.")., at art. 7 (setting out the data subject's consent as necessary for processing personal data unless the processing can be justified by necessity relating to performance of a contract, compliance with a legal obligation of the data controller, and so on).
160. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm [hereinafter Data Protection Directive] ("The Commission shall examine, in particular, the application of this Directive to the data processing of sound and image data relating to natural persons and shall submit any appropriate proposals which prove to be necessary, taking account of developments in information technology and in the light of the state of progress in the information society.")., at art. 7 (setting out the data subject's consent as necessary for processing personal data unless the processing can be justified by necessity relating to performance of a contract, compliance with a legal obligation of the data controller, and so on). at art. 6(1)(d) (requiring accuracy of data processed by data controllers).
161. Data Protection Directive, Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm [hereinafter Data Protection Directive] ("The Commission shall examine, in particular, the application of this Directive to the data processing of sound and image data relating to natural persons and shall submit any appropriate proposals which prove to be necessary, taking account of developments in information technology and in the light of the state of progress in the information society.")., at art. 7 (setting out the data subject's consent as necessary for processing personal data unless the processing can be justified by necessity relating to performance of a contract, compliance with a legal obligation of the data controller, and so on)., at art. 3, § 2 ("This Directive shall not apply to the processing of personal data... by a natural person in the course of a purely personal or household activity.").
162. This was recognized by Judge Eady in Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [9], [2008] All E.R. (D) 322 (Eng.) (acknowledging that some privacy incursions will involve disputes between private individuals).
163. See Larry E. Ribstein, From Bricks to Pajamas: The Law and Economics of Amateur Journal-ism, 48 WM. & MARY L. REV. 185, 187-88 (2006) (describing generally the transformation of journal-ism from traditional media outlets to private individuals in the blogosphere).
164. Larry E. Ribstein, From Bricks to Pajamas: The Law and Economics of Amateur Journal-ism, 48 WM. & MARY L. REV. at 213 ("Developing norms that control amateur journalists' behavior may not be easy. These journalists by definition comprise a vast group of millions of diverse people rather than a well-defined profession. It may be difficult to find a set of principles that amateur journalists generally can agree on and internalize as norms. Moreover, the self-expression motives of amateur journalists suggest that they will tend to have libertarian views, or at least views incompatible with externally imposed order." (footnotes omitted)).
165. Facebook, http://www.facebook.com (last visited June 1, 2010).
166. MySpace, http://www.myspace.com (last visited June 1, 2010).
167. Second Life, http://www.secondlife.com (last visited June 1, 2010).
168. Wikipedia, http://www.wikipedia.org (last visited June 1, 2010).
169. Jacqueline D. Lipton, "We, the Paparazzi": Developing a Privacy Paradigm for Digital Video, 95 IOWA L. REV. 919 (2010).
170. see also Grimmelman, James Grimmelman, The Structure of Search Engine Law, 93 IOWA L. REV. 1, 15 (2007), at 18-20 (discussing privacy of private user data held by search engines).
171. See Facebook Pages, http://www.facebook.com/advertising/?pages (last visited Jun. 1, 2010) (explaining how corporations can advertise and invite customers to become "fans" on Facebook).
172. See Jacqueline Lipton, From Domain Names to Video Games: The Rise of the Internet in Presi-dential Politics, 86 DENV. U. L. REV. 694 (2009).
173. Jacqueline Lipton, From Domain Names to Video Games: The Rise of the Internet in Presi-dential Politics, 86 DENV. U. L. REV. 694 (2009)., at 699.
174. Jacqueline Lipton, From Domain Names to Video Games: The Rise of the Internet in Presi-dential Politics, 86 DENV. U. L. REV. 694 (2009)., at 699.
175. Danielle Citron, President Obama's Facebook Friends: Web 2.0 Technologies and Privacy, CONCURRING OPINIONS, Apr. 29, 2009, http://www.concurringopinions.com/archives/2009/04/president_obama_2.html#more, [hereinafter Posting of Danielle Citron]
176. see also The White House Homepage, http://www.whitehouse.gov (last visited June 1, 2010) (providing visitors with text, photo, and video content related to presidential activities, as well as the opportunity to link to other social networking sites, including Facebook, Twitter, MySpace, and LinkedIn).
177. Posting of Danielle Citron, President Obama's Facebook Friends: Web 2.0 Technologies and Privacy, CONCURRING OPINIONS, Apr. 29, 2009, http://www.concurringopinions.com/archives/2009/04/president_obama_2.html#more, [hereinafter Posting of Danielle Citron].
178. Danielle Citron, President Obama's Facebook Friends: Web 2.0 Technologies and Privacy, CONCURRING OPINIONS, Apr. 29, 2009, http://www.concurringopinions.com/archives/2009/04/president_obama_2.html#more. ("President Bara[c]k Obama has 6,239,925 Facebook friends. To be sure, this friendship has its privileges. FOPs can post questions on the economy and vote on others' submissions and questions. Have we awoken to a new era of participatory democracy where Web 2.0 technologies mediate conver-sations between the Executive Branch (and maybe the President himself as he reportedly reads selected public mail weekly) and the interested Facebook friendly public? Do these social media technologies tap public participation in ways that e-Rulemaking proponents envisioned but to date has not? Quite possibly.").
179. See Larry E. Ribstein, From Bricks to Pajamas: The Law and Economics of Amateur Journal-ism, 48 WM. & MARY L. REV., at 213 (noting practical difficulties of regulating the conduct of amateur journalists in the blogosphere).
180. See SOLOVE, UNDERSTANDING PRIVACY, 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 165-70.
181. SOLOVE, UNDERSTANDING PRIVACY, 105 (2008) at 103.
182. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 165-70.
183. SOLOVE, UNDERSTANDING PRIVACY 105 (2008) ("My taxonomy's categories are not based upon any overarching principle. We do not need overarching principles to understand and recognize problems .... If we focus on the problems, we can better understand and address them. I aim to shift the approach to a bottom-up focus on problems that are all related to each other, yet not in exactly the same way.")., at 106-12.
184. See, e.g., CAL. CIV. CODE § 1708.8 (West 2009) (aimed at curbing intrusive recordings of individuals in private spaces)
185. RESTATEMENT (SECOND) OF TORTS § 652B (1977) ("One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.").
186. See, e.g., RESTATEMENT (SECOND) OF TORTS § 652C ("One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.")
187. RESTATEMENT (SECOND) OF TORTS § 652C ("One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.") § 652D ("One who gives publicity to a matter concerning the private life of another is subject to li-ability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.")
188. RESTATEMENT (SECOND) OF TORTS § 652C ("One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.") § 652E ("One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.").
189. See, e.g., CAL. CIV. CODE § 1708.8 (aimed at curbing intrusive recordings of individuals in private spaces).
190. See DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 1-4.
191. See also Ostergren v. Cuccinelli, No. 09-1723 (4th Cir. Aug. 2, 2010), available at http://pacer.ca4.uscourts.gov/opinion.pdf/091723.P.pdf.
192. Sánchez Abril, A (My)Space of One's Own: On Privacy and Online Social Networks, 6 NW. J. TECH. & INTELL. PROP. 73, 79-81 (2007), at 80.
193. Google's website boasts that Street View enables users to "[e]xplore the world at street level." Google Maps, http://maps.google.com/help/maps/streetview/ (last visited June 1, 2010)
194. see also Kara Rowland, Invasive New Technologies Alarming Parents, WASH. TIMES, July 28, 2008, at B3 ("The im-age available is the same as what one would see walking down a public street.").
195. See DAVID KESMODEL, THE DOMAIN GAME 126 (2008) ("Web 2.0 was a buzz word used to describe a new wave of Web businesses that leveraged social networking, user-generated content, and other forms of collaboration and information-sharing on the Internet."), at 193-94 (describing the mechanics of Google Street View and the opposition it has produced).
196. See, e.g., DAVID KESMODEL, THE DOMAIN GAME 126 (2008) ("Web 2.0 was a buzz word used to describe a new wave of Web businesses that leveraged social networking, user-generated content, and other forms of collaboration and information-sharing on the Internet.") at 193 ("Some people became alarmed when they realized Google Street View cameras could zoom in so closely that in one case, people could be seen inside the house. Aaron and Christine Boring, an American couple, unsuccessfully sued Google for $25,000 for showing their house on Google Street View.")
197. DAVID KESMODEL, THE DOMAIN GAME 126 (2008) ("Web 2.0 was a buzz word used to describe a new wave of Web businesses that leveraged social networking, user-generated content, and other forms of collaboration and information-sharing on the Internet.") at 194 ("The small northern German town of Molfsee-not at all happy at the prospect of becoming part of Street View-anticipated the arrival of Google's fleet of dark-colored Opel Astras with cameras on top. The photography vehicles already had shown up in other parts of Germany, snapping photographs for Google Street View. The 5,000 citizens of Molfsee took fast action, getting the local council to pass a road traffic act that would require Google to get a permit for the picture-taking. Local politicians then refused to issue the permit. Other parts of Germany were considering enacting similar ordinances.")
198. DAVID KESMODEL, THE DOMAIN GAME 126 (2008) ("Web 2.0 was a buzz word used to describe a new wave of Web businesses that leveraged social networking, user-generated content, and other forms of collaboration and information-sharing on the Internet."). at 195 ("In Japan, a group of lawyers and professors asked Google to suspend its Street View service there. 'We strongly suspect that what Google has been doing deeply violates a basic right that humans have,' said Yasuhiko Tajima, a professor of constitutional law at Sophia University and head of The Campaign Against Surveillance Society. 'It is necessary to warn society that an IT giant is openly violating privacy rights, which are important rights that the citizens have, through this service.'")
199. Lora Pabst, North Oaks Tells Google Maps: Keep Out, STAR TRIBUNE, May 31, 2008, at 1A ("North Oaks' unique situation, in which the roads are privately owned by the resi-dents and the city enforces a trespassing ordinance, may have made it the first city in the country to re-quest that the online search engine remove images from Google Maps.").
200. DAVID KESMODEL, THE DOMAIN GAME 126 (2008) ("Web 2.0 was a buzz word used to describe a new wave of Web businesses that leveraged social networking, user-generated content, and other forms of collaboration and information-sharing on the Internet."), at 194 (noting Google's response to a claim of privacy infringement with respect to its Google Street View service: "It usually is not against the law to photograph a house from the street, as long as the photographer does not trespass on private property").
201. DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 4 ("Information that was once scattered, forgettable, and localized is becoming permanent and searchable.").
202. Josh Blackman, Omniveillance: Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual's Image Over the Internet, 49 SANTA CLARA L. REV. 313, 331-34 (2009) (detailed discussion of the ways in which technologies such as Google's street view service threaten privacy in ways never before contemplated).
203. JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008) (providing a formula for defining privacy rights)., at 56 ("The upshot of technology and the increased supply and demand for information is a massive amount of information that is easily accessible. That which was lost in 'practical obscurity' is available online and instantly.").
204. NEIL ROBINSON, HANS GRAUX, MAARTEN BOTTERMAN & LORENZO VALERI, REVIEW OF THE EUROPEAN UNION DATA PROTECTION DIRECTIVE, at vii (May 2009), available at http://www.rand.org/pubs/technical_reports/2009/RAND_TR710.pdf ("Overall, we found that as we move toward a globally networked society, the [Data Protection] Directive as it stands will not suffice in the long term. While the widely applauded principles of the Directive will remain as a useful front-end, they will need to be supported by a harms-based back-end in order to cope with the growing challenge of globalisation and international data flows.")., at 16-19 (noting the challenges that fast-paced technology poses and suggesting the need for a multimodal approach to protecting privacy in the Web 2.0 age, involving the development of norms and technologies to enhance privacy along with clarification and better implementation of the EU Data Protection Directive).
205. It seems clear that an actor's motivations are properly regarded as an integral part of a broad privacy map. Motivations can have a significant impact on the ways in which courts, legislatures, and society analyze privacy-threatening conduct. Commentators have noted that courts are prepared to take a defendant's motivations into account when ascertaining whether a legally actionable privacy incursion has taken place.
206. See Sánchez Abril, Recasting Privacy Torts in a Spaceless World, 21 HARV. J.L. & TECH. 1, 18 (2007) [hereinafter Sánchez Abril, Recasting Privacy Torts], at 36 ("Evidence of outrageous, intentional, and systematic campaigns to harass, discredit, or embarrass have been widely held to indicate invasions of privacy." (footnote omitted)).
207. Google Street View is another example. JANET LOWE, GOOGLE SPEAKS 294 (2009) (defining "Web 2.0" as "[a] term used to describe an evolving generation of a participatory Web. Web 2.0 describes the proliferation of interconnectivity and social interaction on the World Wide Web")., at 194-95 ("While Google soft-ware apparently blurs license plate numbers and faces [on Street View] so as to make them unrecogniz-able, and anyone who appears in a picture can request that the picture be removed, those safeguards do not seem to be enough for many people. Street View easily can provide other damaging information, and, especially when combined with buildings viewed from above by satellite, could be quite useful to stalkers or anyone with criminal intent.").
208. Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [31], [2008] All E.R. (D) 322 (Eng.) ("It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.").
209. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights] (imported into British law under the Human Rights Act, 1998, c. 42 (Eng.)).
210. Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [31], [2008] All E.R. (D) 322 (Eng.) ("It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.").
211. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights] (imported into British law under the Human Rights Act, 1998, c. 42 (Eng.)). at art. 8.
212. [2008] EWHC (QB) 1777, [79]-[97] (analyzing the motivation of a journalist's conduct with respect to participants in erotic party).
213. Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [31], [2008] All E.R. (D) 322 (Eng.) ("It has been repeatedly and rightly said that what engages the interest of the public may not be material which engages the public interest.").
214. European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights] (imported into British law under the Human Rights Act, 1998, c. 42 (Eng.)). at [153]-[71] (analyzing whether the journalist lived up to the standard of "responsible journalism").
215. See, e.g., Lawrence Lessig, The Architecture of Privacy, 1 VAND. J. ENT. L. & PRAC. 56, 62-64 (1999)
216. Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 101 (2009) (noting that unbridled freedom of expression can cause greater harms than humiliation or embarrassment and that verbal online attacks can generate the fear of physical violence, exclusion and subordination).
217. SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 130 (noting that both privacy and free speech are aspects of individual autonomy and need not be juxtaposed against each other).
218. SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]. at 126-27 (discussing the view that free speech is incompatible with privacy).
219. See RESTATEMENT (SECOND) OF TORTS § 652C (1977) ("One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.").
220. See ANNE GILSON LALONDE ET AL., 1 GILSON ON TRADEMARKS § 2B.01 (2009) ("The right of publicity is the right of [an individual] to control the commercial use of his or her name, visual likeness, signature symbol, or other personal characteristics.")
221. see also JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008) (providing a formula for defining privacy rights)., at 173-77 (discussing technical differences between the privacy misappropriation tort and the right of publicity tort).
222. E.g., CAL. CIV. CODE § 1708.8 (West 2009) (aimed at curbing intrusive recordings of individuals in private spaces).
223. See discussion in Neil Richards & Daniel Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEO. L.J. 123, 173-81 (2007)., at 158-73.
224. See European Convention for the Protection of Human Rights and Fundamental Freedoms, art. 10, Nov. 4, 1950, 213 U.N.T.S. 221 [hereinafter European Convention on Human Rights] (imported into British law under the Human Rights Act, 1998, c. 42 (Eng.))., art. 8.
225. Ribstein, Larry E. Ribstein, From Bricks to Pajamas: The Law and Economics of Amateur Journal-ism, 48 WM. & MARY L. REV. 185, 187-88 (2006), at 187 (noting the trend towards private individuals becoming amateur journalists in the blogging context).
226. Data Protection Working Party, Opinion 5/2009 on Online Social Networking, 01189/09/EN/WP.163 (June 12, 2009), available at http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf, § 3.1.2 (contemplating the need to balance rights to privacy and free expression between users of online social networks).
227. JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 211 (2008) ("The famed 'Bus Uncle' of Hong Kong upbraided a fellow bus passenger who politely asked him to speak more quietly on his mobile phone. The mobile phone user learned an important lesson in etiquette when a third person captured the argument and then uploaded it to the Internet, where 1.3 million people have viewed one version of the exchange.... Weeks after the video was posted, the Bus Uncle was beaten up in a targeted attack at the restaurant where he worked." (footnotes omitted)).
228. Opinion 5/2009 on Online Social Networking, 01189/09/EN/WP.163 (June 12, 2009), available at http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf at 212 ("The student who made the [Star Wars kid] video has been reported to have been traumatized by its circulation ....")
229. Wired News Report, Star Wars Kid Files Lawsuit, WIRED, July 24, 2003, http://www.wired.com/culture/lifestyle/news/2003/07/59757 ("Ghyslain was so teased about the video, he dropped out of school and finished the semester at a children's psychiatric ward, according to a lawsuit filed in the Raza's hometown of Trois-Rivières, Quebec.").
230. DANIEL SOLOVE, THE DIGITAL PERSON 1-7 (2004) [hereinafter SOLOVE, THE DIGITAL PERSON] (describing the problem of "digital dossiers" online)., at 97 ("[T]he invasion conception's focus on pri-vacy invasions as harms to specific individuals often overlooks the fact that certain privacy problems are structural-they affect not only particular individuals but society as a whole.").
231. DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 122 (noting that while litigation is not always primarily about economic damages, rather many litigants bring claims for other reasons, such as to vindicate their reputation or seek an apology).
232. RESTATEMENT (SECOND) OF TORTS, § 652C (1977) ("One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.").
233. LALONDE ET AL., ANNE GILSON LALONDE ET AL., 1 GILSON ON TRADEMARKS § 2B.01 (2009), § 2B.01 ("The right of publicity ... is the right of an individual to control the commercial use of his or her name, likeness, signature, or other personal characteris-tics.")
234. see also JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008), at 173-77 (discussing technical differences between the privacy misappropriation tort and the right of publicity tort).
235. See SOLOVE ET AL., DANIEL SOLOVE, MARC ROTENBERG & PAUL SCHWARTZ, INFORMATION PRIVACY LAW 33-34 (2d ed. 2006), at 696-700.
236. See Neil Richards & Daniel Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 GEO. L.J. 123, 173-81 (2007)., at 163-64.
237. This may be gradually changing at least in some jurisdictions. See, e.g., Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [231], [2008] All E.R. (D) 322 (Eng.) (£60,000 damages awarded in breach of privacy action in the United Kingdom).
238. This may be gradually changing at least in some jurisdictions. See, e.g., Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777 at [231] ("[I]t has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible.").
239. This may be gradually changing at least in some jurisdictions. See, e.g., Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777 at [230] ("Claimants with the degree of resolve (and financial resources) of Mr. Max Mosley are likely to be few and far between.")
240. Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 101 (2009), at 90 (noting that in the analogous case of civil rights laws such as defamation, "because damages may be hard to prove and quantify, and because many plaintiffs cannot afford to litigate based on principle alone, the high cost of litigation of-ten deters the filing of general tort suits").
241. SOLOVE, THE FUTURE OF REPUTATION, DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 120-21 (noting the difficulties of plaintiffs in privacy actions having to be publicly identified on court records).
242. Mosley, [2008] EWHC (QB) 1777, at [214] (distinguishing between damages for defamation and damages for infringement of privacy rights). Judge Eady also noted the difficulties inherent in at-tempting to quantify a loss of privacy.
243. Mosley, [2008] EWHC (QB) 1777. at [215]-[16]. Such losses cannot really be compared mean-ingfully with any losses suffered as a result of a physical injury or even a defamation claim. Judge Eady also noted the difficulties inherent in at-tempting to quantify a loss of privacy.
244. Mosley, [2008] EWHC (QB) 1777. at [225]-[26].
245. See SOLOVE, DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 192 (describing Reputation De-fender as "a company that helps people find and remove harmful information about themselves online").
246. See Ann Bartow, Internet Defamation as Profit Center: The Monetization of Online Harassment, 32 HARV. J. L. & GENDER 383, 419 (2009) ("[T]he greater the quantity of sexual harassment toward affluent victims that appears on the Internet, the wealthier reputation defense services [like Reputation De-fender] can become. Substantial widespread online personal misery equals success for these companies. The sexual-harassment-based component of the Reputation Defender business model partly depends on a long-term flourishing of frightening misogyny that the legal system will not address.").
247. See Ann Bartow, Internet Defamation as Profit Center: The Monetization of Online Harassment, 32 HARV. J. L. & GENDER 383, 419 (2009) ("[T]he greater the quantity of sexual harassment toward affluent victims that appears on the Internet, the wealthier reputation defense services [like Reputation De-fender] can become. Substantial widespread online personal misery equals success for these companies. The sexual-harassment-based component of the Reputation Defender business model partly depends on a long-term flourishing of frightening misogyny that the legal system will not address.").
248. This could be modeled on the notice and takedown provisions in the Digital Millennium Copy-right Act, 17 U.S.C. § 512 (2006)
249. see also Jacqueline D. Lipton, "We, the Paparazzi": Developing a Privacy Paradigm for Digital Video, 95 IOWA L. REV. 919 (2010). ("Peer photographs are usually taken with the consent of the image subject and in a non-intrusive fashion. In many cases, the subject has no objection to the taking of the picture, but may later be concerned about viral online dissemination. Laws that regulate intrusive image-capturing are therefore not much help when the subject's concern is with online dissemination." (footnotes omitted)).
250. See Jacqueline D. Lipton, "We, the Paparazzi": Developing a Privacy Paradigm for Digital Video, 95 IOWA L. REV. 919 (2010).
251. See Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [212]-[15], [2008] All E.R. (D) 322 (Eng.) (comparing damages for privacy and defamation claims).
252. See, e.g., Whalen v. Roe, 429 U.S. 589, 591 (1977) (dealing with government-imposed legislation to collect certain sensitive information about drug prescriptions in a digital database); In re Double-click Inc. Privacy Litig., 154 F. Supp. 2d 497, 500 (S.D.N.Y. 2001) (involving the use of cookies to collect information on customer spending habits for online business use)
253. Mosley, [2008] EWHC (QB) 1777, at [19] (noting qualitative difference between video and text information in the privacy context)
254. Campbell v. MGN Ltd., [2004] UKHL 22, [72], [155]-[56], [2004] 2 A.C. 457 (appeal taken from Eng.) (U.K.) ("The publication of a photograph cannot necessarily be justified by saying that one would be entitled to publish a verbal description of the scene ....")
255. MILLS, JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008) (providing a formula for defining privacy rights)., at 35-37 (2008) (noting the importance of recognizing that information available through different modes of communication-such as text, audiotape, still images, and video recordings-have different impacts on privacy)
256. JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008) (providing a formula for defining privacy rights). at 238 ("[C]ourts may be more inclined to protect against intrusive images than intrusive words.")
257. MILLS, JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008)., at 263 (describing the British court's readiness to extend privacy protections to photographs, but not to textual descriptions of particular misconduct)
258. HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE 280 (2006), at 43 ("Photographs are no longer just tangible items to be mailed to friends and family-they are computer bytes easily spread across the Internet. These friends, too, upload the pictures to their own photo-sharing sites ....").
259. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm, at art. 2(a).
260. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm at art. 8.
261. Data Protection Directive, See, e.g., discussion of the European Union Data Protection Directive in notes 60-62 infra. The European Union Data Protection Directive specifically contemplates that problems may arise in applying its text-based provisions to more complex digital file formats. European Union Data Protection Directive 95/46, art. 33, 1995 O.J. (L 281) (EC), available at http://aspe.hhs.gov/DATACNCL/eudirect.htm at art. 8(1).
262. See, e.g., Fair Credit Reporting Act, 15 U.S.C. §§ 1681-1681x (2006).
263. See, e.g., Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. § 1320d-6(a) (2006).
264. Even the European Union approach is now suffering under the pressures of Web 2.0 technologies
265. See NEIL ROBINSON, HANS GRAUX, MAARTEN BOTTERMAN & LORENZO VALERI, REVIEW OF THE EUROPEAN UNION DATA PROTECTION DIRECTIVE, at vii (May 2009), available at http://www.rand.org/pubs/technical_reports/2009/RAND_TR710.pdf, at vii ("Overall, we found that as we move toward a globally networked society, the Directive as it stands will not suffice in the long term.").
266. An example of a court being particularly sensitive to the nature of personal information disclosed in public arose in the British House of Lords case of Campbell v. MGN Ltd., [2004] UKHL 22, [2004] 2 A.C. 457 (appeal taken from Eng.) (U.K.). This case involved a newspaper publishing a story about supermodel Naomi Campbell and her battle against drug addiction. In the case, the information in question was divided into five different substantive elements relating to the story, and the judges were mindful of addressing each part of the substance individually in its application of the British breach of confidence action to the facts of the case
267. See An example of a court being particularly sensitive to the nature of personal information disclosed in public arose in the British House of Lords case of Campbell v. MGN Ltd., [2004] UKHL 22, [2004] 2 A.C. 457 (appeal taken from Eng.) (U.K.). This case involved a newspaper publishing a story about supermodel Naomi Campbell and her battle against drug addiction. In the case, the information in question was divided into five different substantive elements relating to the story, and the judges were mindful of addressing each part of the substance individually in its application of the British breach of confidence action to the facts of the caseat [23] (describing the five different substantive aspects of the information in question as: "(1) the fact of Miss Campbell's drug addiction; (2) the fact that she was receiving treatment; (3) the fact that she was receiving treatment at Narcotics Anonymous; (4) the details of the treatment-how long she had been attending meetings, how often she went, how she was treated within the sessions themselves, the extent of her commitment, and the nature of her entrance on the specific occasion [photographed by the press photographer]; and (5) the visual portrayal of her leaving a specific meeting with other addicts").
268. See, e.g., Case C-101/01, Criminal Proceedings Against Bodil Lindqvist, 2003 E.C.R. I-12971, ¶¶ 49-51 (involving information about a broken ankle as a health condition deserving of privacy); Campbell, [2004] UKHL 22 (involving information about a supermodel's drug addiction).
269. Balanced against this, courts in a number of jurisdictions have gone to great lengths to identify classes of information that are more important to disclose to the public despite the potential disclosure of
270. private information that may be associated with that information. See, e.g., Campbell, [2004] UKHL 22, at [148] ("There are undoubtedly different types of speech, just as there are different types of private in-formation, some of which are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life. Intellectual and educational speech and expression are also important in a democracy, not least because they enable the development of individuals' potential to play a full part in society and in our democratic life. Artistic speech and expression is important for similar reasons, in fostering both individual originality and creativity and the free-thinking and dynamic society we so much value. No doubt there are other kinds of speech and expression for which similar claims can be made.").
271. JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 211 (2008), at 211 (describing incident where woman refused to clean up her dog's mess on a subway car in Korea and aftermath wherein she was targeted for harassment and forced to quit her job when photographs of the incident and additional information about her were posted online).
272. Opinion 5/2009 on Online Social Networking, 01189/09/EN/WP.163 (June 12, 2009), available at http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf at 212 ("The student who made the [Star Wars kid] video has been reported to have been traumatized by its circulation ...."); Wired News Report, Star Wars Kid Files Lawsuit, WIRED, July 24, 2003, http://www.wired.com/culture/lifestyle/news/2003/07/59757 ("Ghyslain was so teased about the video, he dropped out of school and finished the semester at a children's psychiatric ward, according to a lawsuit filed in the Raza's hometown of Trois-Rivières, Quebec.").
273. JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 211 (2008) ("The famed 'Bus Uncle' of Hong Kong upbraided a fellow bus passenger who politely asked him to speak more quietly on his mobile phone. The mobile phone user learned an important lesson in etiquette when a third person captured the argument and then uploaded it to the Internet, where 1.3 million people have viewed one version of the exchange.... Weeks after the video was posted, the Bus Uncle was beaten up in a targeted attack at the restaurant where he worked." (footnotes omitted)).
274. DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 1-2.
275. JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 211 (2008), at 211.
276. DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 44-48.
277. Opinion 5/2009 on Online Social Networking, 01189/09/EN/WP.163 (June 12, 2009), available at http://ec.europa.eu/justice_home/fsj/privacy/docs/wpdocs/2009/wp163_en.pdf at 212 ("The student who made the [Star Wars kid] video has been reported to have been traumatized by its circulation ...."); Wired News Report, Star Wars Kid Files Lawsuit, WIRED, July 24, 2003, http://www.wired.com/culture/lifestyle/news/2003/07/59757 ("Ghyslain was so teased about the video, he dropped out of school and finished the semester at a children's psychiatric ward, according to a lawsuit filed in the Raza's hometown of Trois-Rivières, Quebec.").
278. JONATHAN ZITTRAIN, THE FUTURE OF THE INTERNET AND HOW TO STOP IT 211 (2008), at 211.
279. Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 101 (2009), at 125 (noting the importance of punishing mob behavior online which is in some ways analogous to punishing those who infringe on others' privacy with malicious motivations).
280. Mosley, [2008] EWHC (QB) 1777, at [19] (noting qualitative difference between video and text information in the privacy context)
281. Campbell v. MGN Ltd., [2004] UKHL 22, [72], [155]-[56], [2004] 2 A.C. 457 (appeal taken from Eng.) (U.K.) ("The publication of a photograph cannot necessarily be justified by saying that one would be entitled to publish a verbal description of the scene ....")
282. JON L. MILLS, PRIVACY: THE LOST RIGHT, at 35-37 (2008) (noting the importance of recognizing that information available through different modes of communication-such as text, audiotape, still images, and video recordings-have different impacts on privacy)
283. JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008). at 238 ("[C]ourts may be more inclined to protect against intrusive images than intrusive words.")
284. JON L. MILLS, PRIVACY: THE LOST RIGHT 13-15 (2008)., at 263 (describing the British court's readiness to extend privacy protections to photographs, but not to textual descriptions of particular misconduct)
285. PALFREY & GASSER, HENRY JENKINS, CONVERGENCE CULTURE: WHERE OLD AND NEW MEDIA COLLIDE 280 (2006), at 43 ("Photographs are no longer just tangible items to be mailed to friends and family-they are computer bytes easily spread across the Internet. These friends, too, upload the pictures to their own photo-sharing sites ....").
286. Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 101 (2009), at 104-05 (describing the Catsouras incident).
287. Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 101 (2009), at 104-05 (describing the Catsouras incident).
288. Danielle Keats Citron, Cyber Civil Rights, 89 B.U. L. REV. 61, 101 (2009), at 104-05 (describing the Catsouras incident).
289. See New York Times Co. v. NASA, 782 F. Supp. 628, 631 (D.D.C. 1991).
290. Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [16], [2008] All E.R. (D) 322 (Eng.) ("Sometimes there may be a good case for revealing the fact of wrongdoing to the general public; it will not necessarily follow that photographs of 'every gory detail' also need to be published to achieve the public interest objective.").
291. Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [16], [2008] All E.R. (D) 322 (Eng.) at [134] ("In the light of the strict criteria I am required to apply, in the modern climate, I could not hold that any of the visual images, whether published in the newspaper or on the website, can be justified in the public interest. Nor can it be said in this case that even the information conveyed in the verbal descriptions would qualify.").
292. Mosley v. News Group Newspapers, [2008] EWHC (QB) 1777, [16], [2008] All E.R. (D) 322 (Eng.) at [21] ("[I]t should not be assumed that, even if the subject-matter of the meeting on 28 March was of public interest, the showing of the film or the pictures was a reasonable method of con-veying that information. In effect, it is a question of proportionality.")
293. see also Campbell v. MGN Ltd., [2004] UKHL 22, [60] [2004] 2 A.C. 457 (appeal taken from Eng.) (U.K.) ("The relatively anodyne nature of the additional details is in my opinion important and distinguishes this case from cases in which (for example) there is a public interest in the disclosure of the existence of a sexual relationship (say, between a politician and someone whom she has appointed to public office) but the addition of salacious details or intimate photographs is disproportionate and unacceptable. The latter, even if accompanying a legitimate disclosure of the sexual relationship, would be too intrusive and demeaning.").
294. Campbell, [2004] UKHL 22.
295. Campbell. at [121], [155]-[56].
296. Campbell. at [31] ("In general, photographs of people contain more information than textual description. That is why they are more vivid. That is why they are worth a thousand words.").
297. DANIEL SOLOVE, THE FUTURE OF REPUTATION: GOSSIP, RUMOR, AND PRIVACY ON THE INTERNET 205 (2007) [hereinafter SOLOVE, THE FUTURE OF REPUTATION]., at 45-46 (describing the multimedia ver-sions created of the Star Wars Kid video and shared publicly over the Internet)
298. Josh Blackman, Omniveillance: Google, Privacy in Public, and the Right to Your Digital Identity: A Tort for Recording and Disseminating an Individual's Image Over the Internet, 49 SANTA CLARA L. REV. 313, 331-34 (2009) (detailed discussion of the ways in which technologies such as Google's street view service threaten privacy in ways never before contemplated)., at 328-31 (discussing the acceleration of technologies which enhance the potential for intrusion).
299. Jacqueline D. Lipton, "We, the Paparazzi": Developing a Privacy Paradigm for Digital Video, 95 IOWA L. REV. 919 (2010).