The new intrusion

Notre Dame Law Review

Volumn 88, Issue 1, 2012, Pages 205-275

  Bambauer, Jane Yakowitz ^a,b  

^a UNIVERSITY OF ARIZONA   (United States)

^b YALE UNIVERSITY   (United States)

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EID: 84867830561     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (284)

1. Nader v.Gen.Motors Corp., 255 N.E.2d 765, 767 (N.Y.1970).
2. Restatement (Second) of Torts § 652B (1977).
3. "Where diere is intrusion, die intruder should generally be liable whatever the content of what he learns." Pearson v.Dodd, 410 F.2d 701, 705 (D.C.Cir.1969).The tort "consists solely of an intendonal interference widi his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man."
4. Restatement (Second) of Torts § 652B cmt.a (1977)."The intrusion itself makes the defendant subject to liability, even diough there is no publication or other use of any kind of the photograph or information oudined."
5. See, e.g., Fletcher v.Price Chopper Foods of Trumann, Inc., 220 F.3d 871, 876 (8th Cir.2000) (holding that "unauthorized release of medical information does not constitute highly offensive conduct when diat information could have been obtained by proper means");
6. Remsburg v.Docusearch, Inc., 816 A.2d 1001, 1009 (N.H.2003) (holding that because work address information is "readily observable by members of die public," no cause of action for intrusion upon seclusion can be maintained).These opinions miss die heart of die tort, and are anomalous.Some courts also use die tort of intrusion to address harassing behavior diat fits die tort of intentional infliction of emotional distress better, as when a debt collector makes incessant, hostile phone calls to a person believed to be the debtor.
7. See, e.g., Norris v.Moskin Stores, Inc., 132 So.2d 321, 323 (Ala.1961) (recognizing a claim for invasion of privacy based on wrongful intrusion when a creditor takes unreasonable actions to collect on a debt).These, too, are not representative of die tort.Moreover, statutes that outlaw similar behavior (so-called "trespass by telephone" statutes) are on constitutionally infirm ground.
8. See, e.g., People v.Pierre-Louis, 2011 N.Y.Slip Op.21254, at *4 (2011) (holding diat repeated calls to a district attorney could not be banned because of the First Amendment's free speech guarantee).
9. Neil M.Richards, The Limits of Tort Privacy, 9 J.on Telecomm.& High Tech L.357, 359 (2011);
10. see also Danielle Keats Citron, MainstreamingPrivacy Torts, 98 Cal.L.Rev.1805, 1805 (2010);
11. Jerry Kang, Information Privacy in Cyberspace Transactions, 50 Stan.L.Rev.1193, 1231 (1998);
12. Jessica Litman, Information Privacy/Information Property, 52 Stan.L.Rev.1283, 1304 & n.94 (2000);
13. Neil M.Richards & Daniel J.Solove, Prossers Privacy Law: A Mixed Legacy, 98 Cal.L.Rev.1887, 1918 (2010);
14. Paul M.Schwartz, Privacy and Democracy in Cyberspace, 52 Vand.L.Rev.1607, 1634 (1999).
15. Paul M.Schwartz, Property, Privacy, and Personal Data, 117 Harv.L.Rev.2055, 2095 (2004).
16. Joel R.Reidenberg, Restoring Americans' Privacy in Electronic Commerce, 14 Berkeley Tech.LJ.771, 788 (1999).
17. Neil M.Richards, Reconciling Data Privacy and the First Amendment, 52 UCLA L.Rev.1149, 1165, 1171-72 (2005).The First Circuit adopted Richards's strategy, and ruled that prescription data held by a large data aggregator could be regulated for the same reasons that beef jerky can.
18. IMS Health Inc.v.Ayotte, 550 F.3d 42, 53 (1st Cir.2008).
19. The opinion was effectively overruled by the Supreme Court's decision in Sor-rell v.IMS Health Inc., 131 S.Ct.2653 (2011).
20. Commercial Privacy Bill of Rights Act of 2011, S.799, 112th Cong.(2011);
21. Press Release, White House, Fact Sheet: Plan to Protect Privacy in die Internet Age by Adopting a Consumer Privacy Bill of Rights (Feb.23, 2012) [hereinafter Consumer Privacy Bill of Rights], available at http://www. whitehouse.gov/the-press-office/2012/ 02/23/fact-sheet-plan-protect-privacy- internet-age-adoptingonsumer-privacy-b?utm-source=wh.gov&utm-medium= shorturl&utm-campaign=shorturl.
22. Daniel J.Solove, Conceptualizing Privacy, 90 Cal.L.Rev.1087, 1151 (2002).
23. Other scholars laud the intrusion tort, though none fully develop it Andrew Jay McClurg touted die virtues of intrusion and gave definition to die aims of die tort, but ultimately gave up on die tort as helpful for any actions taken in public diat are voluntarily revealed.Andrew Jay McClurg, Bringing Privacy Law Out of the Closet: A Tort Theory of Liability for Intrusions in Public Places, 73 N.C.L.Rev.989, 1054 (1995).Lyrissa Lidsky proposes die expansion of die intrusion tort dirough die creation of a newsgadierer's privilege, which could take pressure off courts diat might be reluctant to impose intrusion liability for fear of interfering witii die news media's important functions.
24. Lyrissa Barnett Lidsky, Prying Spying and Lying: Intrusive Newsgathering and What the Law Should Do About It, 73 Tul.L.Rev.173, 173 (1998).More recendy, in describing die limitations on die tort of public disclosure, Neil Richards has concluded diat "die law should focus on preventing unwanted collections or accumulations of information, radier dian preventing die dissemination of already-collected information" and recommends turning to die tort of intrusion to do so.
25. Europe is experiencing increasing difficulty enforcing its strict data privacy laws without forcing European websites and devices to adopt needlessly clunky interfaces.Marisa Taylor, Europe Approves New Cookie Law, Wall St.J.(Nov.11, 2009, 11:13 AM), http://blogs.wsj.com/digits/2009/ll/ll/europe- approves-new-cookie-law/?mod=.The European Union is struggling to enact and make sense of the Privacy and Electronic Communications Directive (E-Directive), which requires all European countries to enact laws requiring websites to obtain consent before placing cookies on computer users' machines.Implementation of die Directive has been so difficult that the Information Commissioner's Office in the United Kingdom issued a press release announcing diat enforcement would not begin for another year.
26. See Press Release, Information Commissioner's Office, ICO Gives Website Owners One Year to Comply with Cookies Law (May 25, 2011), available at http://www.ico.gov.uk/-/media/docu-ments/pressreleases/2011/enforcement-cookies- rules-news-release-20110525.pdf;
27. see also Siobhain Butterworth, Cookie Law Shambles Really Takes the Biscuit, Guardian (May 27, 2011, 10:31 AM) http://www.guardian.co.uk/law/ butterworth-and-bowcott-on-law/2011/may/27/cookie-law-shambles-web-browsers.
28. Some commentators have criticized the cookie law, arguing that enforcement is bound to be either arbitrary and capricious or a fool's errand.See, e.g., The Stupid EU Cookie Law in 2 '/2 Minutes, http://www.youtube.com/watch?v=ARWJAOjVPAc (last visited Sept.11, 2012).
29. Samuel D.Warren & Louis D.Brandeis, The Right to Privacy, 4 Harv.L.Rev.193 (1890) (arguing that the common law allowed for a general right to privacy).
30. The HEW Report, drafted in 1973 and heralded as the seminal source of fair information practices, has a subsection titled "Too Much Data." U.S.Dept.of Health, Educ.& Welfare, Records, Computers and the Rights of Citizens 13 (1973) [hereinafter HEW Report].
31. See M.Ryan Calo, The Boundaries of Privacy Harm, 86 Ind.LJ.1, 9 n.41 (2011);
32. see also Jacqueline D.Lipton, Mapping Online Privacy, 104 Nw.U.L.Rev.477, 482-84 (2010) (acknowledging that many privacy responses, including the European Union's Data Protection Directive are ill equipped to respond to privacy issues inherent to user-generated Web content);
33. Felix T.Wu, Privacy and Utility in Data Sets, 84 U.Colo.L.Rev (forthcoming 2013).
34. See generally 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 (2000) (arguing that broad information privacy rules are not easily defensible under existing free speech law).
35. Richard A.Posner, The Economics of Justice 272 (1981).
36. Ruth Gavison, Privacy and the Limits of Law, 89 Yale LJ.421, 423 (1980).
37. This matches the European Union Data Protection Directive, which imposes limitations when data is "used for taking measures or decisions regarding any particular individual." Directive 95/46/EC, of the European Parliament and of die Council of 24 October 1995 on die Protecdon of Individuals widi Regard to die Processing of Personal Data and on the Free Movement of Such Data, art.13(2), 1995 OJ.(L 281) 31, 42, available at http://eur-lex.europa.eu/ LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTML (last visited Oct.11, 2012) [hereinafter EU Data Protection Directive].
38. 18 U.S.C.§§ 2510-2522 (2006).
39. Video Voyeurism Prevention Act, id.§ 1801.
40. Pub.L.No.104-191, 110 Stat.1936
41. codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C.
42. Pub.L.No.101-336,104 Stat.327 (codified in scattered sections of 42 U.S.C).
43. Daniel Solove's taxonomy of privacy problems can map direcdy onto these four stages.Surveillance (clandesdne observation), idendficadon, and fruitful interrogations occur at die "observation" stage.Daniel J.Solove, A Taxonomy of Privacy, 154 U.Pa.L.Rev.477, 491-99 (2006) (explaining that "idendficadon" is die attachment of an identity to a previously anonymous piece of information, so it allows an observadon about the identified person for the first time, even if die information were already observed in anonymized form).Aggregation occurs at die "capture" stage since die stage includes the presumed indefinite storage of a record.
44. Lawrence Lessig, Code Version 2.0, 6-8 (2d ed.2006).
45. Jerry Kang & Benedikt Buchner, Privacy in Atlantis, 18 Harv.J.L.& Tech.229, 232 (2004) (indicating that die property right approach would result in personal data being exchanged dirough free market interactions).
46. A.Michael Froomkin, The Death of Privacy?, 52 Stan.L.Rev.1461,1461 (2000);
47. Marc Roten-berg, Fair Information Practices and the Architecture of Privacy (What Larry Doesn't Get), 2001 Stan.Tech.L.Rev.1, 33 (2001) (noting the effort to protect an individual's privacy);
48. Proposal for a Regulation of the European Parliament and of the Council on the Protection of Individuals with Regard to die Processing of Personal Data and on die Free Movement of Such Data, at 9, COM (2012) 56 draft (Nov.29, 2011).
49. See generally William L.Prosser, Privacy, 48 Cal.L.Rev.383 (1960) (describing four types of privacy invasion);
50. Richard S.Murphy, Property Rights in Personal Information: An Economic Defense of Privacy, 84 Geo.L.Rev.2381, 2397 (1996);
51. Daniel Solove, The Future of Reputation 122-29 (2007) (arguing that tort law continues to play an important role as a deterrent for individuals who spread rumors or spill secrets);
52. Patricia Sanchez Abril, Recasting Privacy Torts in a Spaceless World, 21 Harv.J.L.& Tech.1 (2007) (reconstructing the tort of public disclosure to avoid the "scattershot" nature of existing precedent).
53. citing Friedrich Nietzsche, The Gay Science 194-95 (Bernard Williams ed., Josefine Nauckoff trans., Cambridge Univ.Press 2001) (1887).
54. Ian Ayres, Super Crunchers 197 (2007) (citing studies diat found most people were willing to disclose their social security numbers in exchange for fifty-cent-off coupons);
55. Eric Goldman, The Privacy Hoax, Forbes, Oct.14, 2002, at 42, available at http://www.forbes.com/forbes/2002/1014/042.html.But as with real property, a right to information property would allow some Americans to be data holdouts.
56. See FTC Staff Rep., Protecting Consumer Privacy in an Era of Rapid Change 6-7 (2010), available at http://www.ftc.gov/os/2010/12/101201privacy report.pdf.This is particularly odd since the Federal Trade Commission's consumer protection duties requires the FTC and the plaintiffs' bar to detect fraud and identify likely victims, both of which are improbable without the aid of data.
57. See Official Court Notice of Settlement In re DoubleClick Inc.Privacy Litig., Master File No.00-CrV-0641;
58. see also Press Release, Fed.Trade Comm'n, FTC Announces Settlement with Bankrupt Website, Toysmart.com, Regarding Alleged Privacy Policy Violations (July 21, 2000), available at http://www.ftc.gov/opa/2000/07/ toysmart2.shtm.
59. James Q.Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 Yale L.J.1151, 1155-60 (2004).
60. The inherent value of information is expressed by the influential writings by John Stuart Mill: Wrong opinions and practices gradually yield to fact and argument: but facts and arguments, to produce any effect on the mind, must be brought before it.Very few facts are able to tell their own story, without comments to bring out their meaning.The whole strength and value, then, of human judgment, depending on the one property, that it can be set right when it is wrong, reliance can be placed on it only when the means of setting it right are kept constantly at hand.John Stuart Mill, On Liberty 39 (1869).
61. Internet search terms can reveal epidemiological trends faster than die Center for Disease Control.See Alexis Madrigal, Google Could Have Caught Swine Flu Early, Wired (Apr.29, 2009, 3:40 PM), http://www.wired.com/wiredscience/ 2009/04/google-could-have-caught-swine-flu-early;
62. Melinda Wenner, Google Flu Trends Do Not Match CDC Data, Popular Mechanics (May 17, 2010, 9:15 AM), http://www.popularmechanics.com/science/ health/med-tech/google-flu-trends-cdc-data.The flu can infect an area without causing the fever and respiratory problems that are typically Googled.What Google Flu Trends tracks is better understood as tracking flu-like symptoms rather than actual confirmed influenza outbreaks.
63. Backlogs of crime victim reports and odier data have allowed experimental law enforcement programs to use analytics to predict more accurately where larceny and other crimes are most likely to happen and when.The most cutting-edge programs can provide predictions as focused as a one square-block area.See Erica Goode, Sending the Police Before There's a Crime, N.Y.Times, Aug.15, 2011, at All, available at hup://www.nytimes.com/2011/08/16/us/16police. html.
64. Baseball, which has rewarded fans and team owners who have the patience and aptitude for statistics, is about to undergo another data renaissance with the help of a new technology called Fieldf/x, which records every single motion of each player at every game.If it works as promised, the corrective statistics made popular by MoneybaU may prove to be completely outmoded.Also, baseball's league awards and pay structure might become one of the most meritocratic systems known to exist.Ira Boudway, Baseball Set for Data Deluge as Player Monitoring Goes Hi-Tech, Bloomberg (Mar.31, 2011, 5:00 PM), http://www. bloomberg.com/news/2011-03-31/baseball-is-set-for-deluge-in-data-as-monitoring- of-players-goes-hi-tech.html.
65. See Jim Rutenberg & Jeff Zeleny, Obama Mines for Voters with High-Tech Tools, N.Y.Times, Mar.8, 2012, at Al, available at http://www.nytimes.com/2012/03/08/us/politics/obamaampaigns-vast-effort-to-re- enlist-08-supporters.html?pagewanted= all.
66. Sorrell v.IMS Health, Inc., 131 S.Ct.2653, 2667 (2011) ("Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.There is thus a strong argument that pre-scriber-identifying information is speech for First Amendment purposes.").Lawrence Lessig and Neil Richards have argued diat personal data is not "expression" and dierefore should not be the basis for First Amendment protection.
67. Derek E.Bambauer, Orwell's Armchair, 79 U.Chi.L.Rev.(forthcoming 2012).Moreover, a test diat assigns less protection to expressions diat have a higher proportion of dry factual information puts undue emphasis on die proportion of an expression diat is made from opinion and point-of-view.
68. See Bartnicki v.Vopper, 532 U.S.514, 527-28 (2001).
69. Rochelle Cooper Dreyfuss, Warren and Brandeis Redux: Finding (More) Privacy Protection in Intellectual Property Lore, 1999 Stan.Tech.L.Rev.8, 14-23 (1999);
70. Diane Leenheer Zimmerman, Information As Speech, Information As Goods: Some Thoughts On Marketplaces and the Bill of Rights, 33 Wm.fe Mary L.Rev.665, 717 (1992) (discussing the effect the right of publicity has on speech).Right of publicity claims are often lumped under the banner' of "misappropriation. " I distinguish for die purposes of this Article between die tort claim of misappropriation, which protects ordinary people from receiving unwanted and unconsented exposure when dieir images or names are used to sell commercial products, from intellectual property claims for the right of publicity, which are concerned widi die commercial mining and exploitation of celebrity's fame widiout die celebrity's permission.
71. For the contrast, see, for example, Carson v.Here's fohnny Portable Toilets, Inc., 698 F.2d 831, 836 (6di Cir.1983) (permitting recovery when Johnny Carson's celebrity was exploited to market port-a-potties).
72. Parks v.LaFace Records, 329 F.3d 437, 441 (6th Cir.2003).
73. see also Eldred v.Ashcroft, 537 U.S.186, 205-06, 214-15 (2003);
74. Diamond v.Chakrabarty, 447 U.S.303, 307 (1980).
75. Under a labor desert theory, it is very likely the data aggregator who will be seen to invest effort in creating a usable and probative set of personal information since personal information is only as valuable as its data quality.To understand the effort required to create and maintain usable data, see Thomas C.Redman, Data Driven 53-86 (2008).
76. See Int'l News.Serv.v.Associated Press, 248 U.S.215, 216 (1918).But again, this exception rests on a labor desert theory that aims to reward the production of information.
77. see also Lawrence Lessig, Free Culture 10 (2004) (arguing that the change in creative property laws aimed at eliminating piracy can also eliminate "our culture of values");
78. Lee Tien, the staff attorney for the Electronic Frontier Foundation, proposes a statute requiring consent to be obtained before de-identified data can be released.Natasha Singer, Data Privacy, Put to the Test, N.Y.Times, May 1, 2011, at BU3, available at http://www.nytimes.com/2011/05/01/business/01stream. html.
79. The Birth of the Gerrymander, Mass.Hist.Soc.(Sept.2008), http://www.masshist.org/objects/2008september.cfm.
80. Louis Kaplow & Steven Shavell, Fairness Versus Welfare 411 (2002);
81. Ian Ayres & Eric Talley, Solomonic Bargaining: Dividing a Iuegal Entitlement to Facilitate Coasean Trade, 104 Yale L.J.1027, 1031-32 (1995).
82. Much of this example is borrowed from Richard Posner.Richard Posner, Economic Analysis of Law 37-38 (5th ed.1998).
83. This example is similar to Richard Posner's example of the sexually abusive school teacher.Richard Posner, The Economics of Privacy, 71 Am.Econ.Rev.405, 406 (1981).
84. Lizette Alvarez, (Name Here) Is a Liar and a Cheat, N.Y.Times, Feb.16, 2006, at Gl, available at http://www.nytimes.com/2006/02/16/fashion/ diursdaystyles/16WEB.html?pagewanted=all.
85. Moreover, sometimes property rights are extinguished.Eminent domain provides relief when hold-outs are judged to be counter-productive.See Monongahela Nav.Co.v.United States, 148 U.S.312, 326-27 (1893);
86. see also Sam Rimer, Some Seeing Crimson at Harvard's 'Land Grab, 'N.Y.Times, Jun.17, 1997, at A16, available at http://www.nytimes.com/1997/06/ 17/us/some-seeing-crimson-at-harvard-land-grab.html.
87. Sipple v.Chronicle Publ'g Co., 201 Cal.Rptr.665 (Ct.App.1984).
88. Dan Morain, Private Lives, L.A.Times, Feb.13, 1989, § 5, at 1, available at http://articles.latimes.com/1989-02-13/news/vw-1568-l-gay-big-deal: jeiTy-ford.
89. Randy Shilts, The Mayor of Castro Street 122 (1982).
90. If not, providing Sipple with an entitlement of any sort (let alone a property right) would not be economically efficient.Guido Calabresi & A.Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv.L.Rev.1089, 1122 (1972).Speculation about the value of personal information also suffers from the problem of assessment costs.
91. Thornhill v.Alabama, 310 U.S.88, 102 (1940).
92. This is the basic welfare economics model.Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 Harv.L.Rev.961, 977 (2001).Paul Ohm, too, uses a utilitarian model and advises regulators to compare the risks of unfettered information flow to its likely costs in privacy.
93. Paul Ohm, Broken Promises of Privacy: Responding to the Surprising Failure of Anonymization, 57 UCLA L.Rev.1701, 1768 (2010).Note that this model is flexible as to what types of "harm" are accounted.Thus, it is not necessary to come up with one unifying theory of what constitutes a privacy harm.I tend to agree with Daniel Solove that diis is a futile task.
94. Daniel Solove, Understanding Privacy be (2008).
95. George's behavior is a criminal violation of the federal Computer Fraud and Abuse Act, 18 U.S.C.§ 1030 (2006).A Michigan resident is facing a possible five year sentence for using his wife's password to log into her Gmail account, in violation of Michigan state anti-hacking law.
96. Sara Wilson, Clara Walker: Leon Walker "Violated My Privacy,'Huffington Post (Jan.5, 2011, 4:14 PM), http://www.huffingtonpost.com/ 2011/01/05/clara-walker-leon-walker-n-804924.html.
97. Anita Bernstein, How to Make a New Tort: Three Paradoxes, 75 Tex.L.Rev.1539, 1544-47 (1997).
98. See, e.g., Van Alstyne v.Rochester Tel.Corp., 296 N.Y.S.726, 730-31 (App.Div.1937) (imposing liability for the poisoning of two dogs when telephone company trespassed by leaving small bits of cable insulation containing lead, which were then consumed by the dogs).
99. David Rutgers, Wiretap Law Needs Update, Balt.SuN.June 1, 2010, at A13, available at http://articles.baltimoresun.com/2010-06-01/news/bs-ed-maryland- wiretap)-ping-20100601-l-wiretapping-search-warrant-mr-graber;
100. Heidi Reamer Anderson, The Mythical Right to Obscurity: A Pragmatic Defense of No Privacy in Public, 7 ISJLP (forthcoming 2012), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=175 9374.
101. SeeDe May v.Roberts, 9 N.W.146 (Mich.1881) (presenting the factual basis of this example);
102. see also Sanchez-Scott v.Aha Pharmaceuticals, 86 Cal.App.4th 365 (2001), in which a pharmaceutical sales representative intruded on a patient's seclusion when he observed a breast examination because the patient's consent to his presence was predicated on the false assurance that the sales representative was a doctor.
103. Restatement (Second) of Torts § 652B (1977).
104. Joel R.Reidenberg & Francoise Garnet-Pol, The Fundamental Role of Privacy and Confidence in the Network, 30 Wake Forest L.Rev.105 (1995) (arguing that privacy on the internet is necessary in order to promote trust and exploration);
105. Julie E.Cohen, Examined Lives: Informational Privacy and the Subject as Object, 52 Stan.L.Rev.1373, 1377 (2000).
106. Ralph Waldo Emerson, Conduct of Life 134 (1860).
107. Nader v.Gen.Motors Corp., 255 N.E.2d 765, 768 (N.Y.1970).
108. Barber v.Time Inc., 159 S.W.2d 291 (Mo.1942) (imposing liability and punitive damages on Time Magazine for taking and publishing a photograph of a patient with a rare physical ailment after she explicidy denied consent).
109. 18 U.S.C.§§ 2510-2522 (2006).
110. Ryan Linkof elegandy makes diis point in a recent op-ed in die New York Times.Watching die painfully choreographed, and highly policed, red-carpet arrival of Prince William and Kate Middleton at a recent Los Angeles polo match reminded me why intrusive journalistic tactics are often called upon.They exist to break down die barriers of access that keep social elites at a remove from ordinary people.The tabloids, throughout history, on both sides of the Atlantic, have been predicated on chipping away at that division.They play a fundamental role in democratic cultures, especially in societies characterized by the pull between the demands of a mass society and the persistence of social and economic inequality.Ryan Linkof, Op-Ed., Why We Need the Tabloids, N.Y.Times, July 20, 2011, at A27, available at http://www.nytimes.com/2011/07/20/opinion/201inkof. html?-r=0.
111. Emily Miller, Op-Ed., John Edwards Indictment a Vindication for National Enquirer, Wash.Times, June 3, 2011.http://www.washingtontimes.com/news/2011/jun/ 3/millerjohn-edwards-indictment-vindication-nationa/.
112. Helton v.United States, 191 F.Supp.2d 179 (D.D.C.2002).
113. DeBlasio v.Pignoli, 918 A.2d 822, 825 (Pa.Commw.Ct.2007).
114. Kjerstad v.Ravellette Publ'ns, Inc., 517 N.W.2d 419, 422-23 (S.D.1994).
115. Hougum v.Valley Mem'l Homes, 574 N.W.2d 812, 818 (N.D.1998).
116. In re Marriage of Tigges, 758 N.W.2d 824, 827 (Iowa 2008).
117. The quiet conversation between the accident victim and the doctor that came to the scene is afforded seclusion, because the conversation might have been heard only with die help of microphones.Shulman v.Group W Prods., Inc., 955 P.2d 469, 491 (Cal.1998).
118. The Nader line of reasoning has been followed in other jurisdictions as well.Kramer v.Downey, 680 S.W.2d 524 (Tex.App.1984) (holding that incessant observation by a scorned ex-lover, even though she stayed on public property to do so, was an intrusion upon seclusion justifying a jury damages award).
119. Nader v.Gen.Motors Corp., 255 N.E.2d 560, 570-71 (N.Y.1970).
120. Zimmerman v.Wilson, 81 F.2d 847 (3d Cir.1936);
121. State ex rel.Clemens v.Witthaus, 228 S.W.2d 4 (Mo.1950) (en banc);
122. Frey v.Dixon, 58 A.2d 86 (N.J.Ch.1948);
123. Bednarik v.Bednarik, 16 A.2d 80 (N.J.Ch.1940);
124. Brex v.Smith, 146 A.34 (N.J.Ch.1929).
125. William M.Landes & Richard A.Posner, The Economic Structure of Tort Law 30 (1987).
126. 18 U.S.C.§ 2511(2)(c) (2006).
127. See Kelly v.Borough of Carlisle, 622 F.3d 248 (3d Cir.2010);
128. Pomykacz v.Borough of W.Wildwood, 438 F.Supp.2d 504, 513 n.14 (D.NJ.2006) ("An argument can be made that the act of photographing, in the abstract, is not sufficiendy expressive or communicative and therefore not within die scope of First Amendment protection-even when the subject of die photography is a public servant."
129. citing Tenafly Eruv Ass'n, Inc.v.Borough of Tenafly, 309 F.3d 144,160 (3d Cir.2002))
130. C.Thomas Dienes, Protecting Investigative Journalism, 67 Geo.Wash.L.Rev.1139, 1146 (1999).
131. Perhaps in light of Justice Kennedy's reasoning in Sorrell v.IMS, the right to mechanical capture can be tested again.Sorrell v.IMS Health Inc., 131 S.Ct.2653, 2667 (2011) ("Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs.There is dius a strong argument diat prescriber-identifying information is speech for First Amendment purposes.").
132. Dietemann v.Time, Inc., 449 F.2d 245, 249 (9th Cir.1971) (internal quotation marks omitted);
133. Shulman v.Group W Prods., Inc., 955 P.2d 469, 495 (Cal.1998) (internal quotation marks omitted);
134. Shevin v.Sunbeam Television Corp., 351 So.2d 723, 727 (Fla.1977).
135. Seth Kreimer makes a powerful case for First Amendment protection of image capture.Sedi F.Kreimer, Pervasive Image Capture and the First Amendment: Memory, Discourse, and the Right to Record, 159 U.Pa.L.Rev.335, 337 (2011).
136. Robin Wilkey, John Pike Memes Go Viral: Pepper-Spraying UC Davis Cop Becomes Internet Sensation, The Huffington Post (Nov.21, 2011, 8:22 PM), http://www.huf-fingtonpost.com/2011/1 l/21/john-pike-memes-go-viral-n-l106616. html.
137. See Glik v.Cunniffe, 655 F.3d 78, 82 (1st Cir.2011) ("Gathering information about government officials in a form diat can readily be disseminated to odiers serves a cardinal First Amendment interest in protecting and promoting 'die free discussion of governmental affairs.'"
138. quoting Mills v.Alabama, 384 U.S.214, 218 (1966)).The U.S.District Court for die Eastern District of Pennsylvania recognized a First Amendment right to videotape public officers performing dieir public duties.
139. Robinson v.Fetterman, 378 F.Supp.2d 534, 541 (E.D.Pa.2005).The Third Circuit declined to follow Robinson when a recording was made during a traffic stop because Uiese stops are inherendy dangerous for police, and because die recording was not clearly made for a political or expressive purpose.
140. Kelly v.Borough of Carlisle, 622 F.3d 248, 262 (3d Cir.2010);
141. see also Pomykacz v.Borough of W.Wildwood, 438 F.Supp.2d 504, 513 n.14 (D.N.J.2006) ("[Videotaping or photographing die police in die performance of their dudes on public property may be a protected activity." (emphasis added)
142. quoting Gilles v.Davis, 427 F.3d 197, 212 n.14 (3d Cir.2005)).
143. Hamberger v.Eastman, 206 A.2d 239, 242 (N.H.1964).
144. See, e.g., Video Voyeurism Prevention Act, 18 U.S.C.§ 1801 (2006);
145. Ala.Code § 13A-11-32 (2005);
146. Fla.Stat.Ann.§ 810.145 (West 2012).
147. 18 U.S.C.§ 1801.
148. The tort of public disclosure of private facts has been used to effect a limitation at the point of capture when a momentary accidental nudity was captured without consent.Daily Times Democrat v.Graham, 162 So.2d 474 (Ala.1964).
149. But see McNa-mara v.Freedom Newspapers, Inc., 802 S.W.2d 901 (Tex.App.1991) (finding that the First Amendment provided immunity to a newspaper that published a photograph of a high school soccer player whose genitalia were accidentally exposed).The exposure of nude body parts may be a necessary (but not sufficient) condition for recovery based on images of people in sexually compromising positions.
150. See Borton v.Unisys Corp., 1991 WL 915, *9 (E.D.Pa.1991) (where a photograph taken while an employee cupped his hands over another employee's breast without consent was not depicting anything sufficiendy "private" because none of the crucial body parts were exposed).
151. Lyle Rexer, Marriage Under Glass: Intimate Exposures, N.Y.Times, Nov.19, 2000, at AR1, available at http://www.nytimes.com/2000/ll/19/arts/art- architecture-mar-riage-under-glass-intimate-exposures.html?pagewanted= all&src=pm.
152. The Prosecution of Linda Tripp, Editorial, N.Y.Times, Dec.19, 1999, at WK12, available at http://www.nytimes.com/1999/12/19/opinion/die-prosecution-of- linda-tripp.html.
153. Hotel door data was expected to play a role in die rape prosecution of Dominique Strauss-Kahn, die Chief of die International Monetary Fund.Angelique Chrisafis & Ed Pilkington, Hearing is Likely to Hinge on the Question of Consent, Guardian (London), May 19, 2011, at 23, available at http://www.guardian.co.uk/world/2011/may/18/strauss-kahn-defence-likely-consent.
154. A.Michael Froomkin, TheDeath of Privacy!, 52 Stan.L.Rev.1461, 1542 (2000).Froomkin did not believe that existing tort laws, including intrusion upon seclusion, could be expanded to meet privacy demands such as closed circuit television monitoring because the tort traditionally excluded any surveillance or observations performed in public spaces.
155. For a more detailed description of the technology, see In re DoubleClick Inc.Privacy Litig., 154 F.Supp.2d 497, 503-04 (S.D.N.Y.2001).
156. One military court opinion suggested that people cannot have a subjective expectation of privacy in data files that they do not know exist."The military judge concluded the appellant had no expectation of privacy in the contents of the computer.We find no abuse of discretion in his ruling.There is no evidence the appellant was aware the Internet history files existed, and we are unconvinced the appellant could entertain a subjective expectation of privacy in them without such knowledge." United States v.Larson, 64 MJ.559, 563 (A.F.Ct.Crim.App.2006).This poor reasoning is probably an example of bad facts making bad law.Since the defendant was sanctioned for soliciting sex from somebody he believed to be a fourteen-year-old (but was in fact a law enforcement officer), the court was motivated to make every determination against him.
157. Matthew Lasar, The Perils of Being Pandora, Ass Technica (Feb.15, 2011), http://arstechnica.com/media/news/2011 /02/the-perils-of-pandora.ars.
158. Stefanie Olsen, Nearly Undetectable Tracking Device Raises Concern, CNet (July 12, 2000, 3:05 PM), http://news.cnet.com/2100-1017-243077.html.
159. For a description of current cookie-setting practices, see Chris Jay Hoofnagle et al., Can Advertisers Learn That "No Means No"?, BNA Privacy & Security Law Report (2011).
160. The computer user and the website (or its advertising intermediaries) are "users" under the Electronic Communications Privacy Act, and the communications recorded by die cookies are covered communications; dius, accessing die cookies without consent would be an offense under 18 U.S.C.§ 2701A (2006).
161. In re DoubleClick, 154 F.Supp.2d at 507-08.
162. The Computer Fraud and Abuse Act oudaws die intentional access of information and causing damage to an end user's computer.18 U.S.C.§ 1030A(5)(B), (2)(C) (2006).
163. In re Pharmatrak, Inc.Privacy Litigation, 329 F.3d 9 (1st Cir.2003);
164. Chance v.Avenue A, Inc., 165 F.Supp.2d 1153 (W.D.Wash.2001);
165. In re DoubleClick, 154 F.Supp.2d at 497;
166. Valdez v.Quantcast Corp., CV10-05484 (Cal.2010).
167. Avenue A, 165 F.Supp.2d at 1160;
168. In re DoubleClick, 154 F.Supp.2d at 522.
169. United States v.Caceres, 440 U.S.741, 750 (1979) (confirming the Wiretap Act adopts the one-party consent rule).The Wiretap Act does oudaw interceptions that are made for a tortious purpose, regardless of whether a party has consented to the interception, but courts have distinguished between tortious purposes and tortious means.The interception cannot be the basis for relief under the "tortious purpose" clause.
170. Sussman v.Am.Broad.Co., 186 F.3d 1200, 1202-03 (9th Cir.1999).
171. Avenue A, 165 F.Supp.2d at 1161;
172. In re DoubleClick, 154 F.Supp.2d at 510, 519.
173. Avenue A, 165 F.Supp.2d at 1163.
174. Greg Sandoval, Suit Alleges Disney, Other Top Sites Spied on Users, CNet (August 14, 2010, 3:33 PM), http://news.cnet.com/8301-31001-3-20013672-261.html;
175. Christopher Sheean on the Latest Google Class Action, Point of Law (December 8, 2010, 9:41 PM), http://www.pointoflaw.com/archives/2010/12/chris- sheean-on.php.
176. This is a collapsed version of the Second Restatement definition of intrusion upon seclusion.The Restatement defines die tortfeasor as: "[o]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of anodier 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." Restatement (Second) of Torts § 652B (1977).Here, the observation event incorporates die inten-tionality and the intrusion elements, and the requirement tiiat the observation event be offensive incorporates both the "offensiveness" element as well as considering whether die plaintiff had "seclusion" in die first place.
177. In re Northwest Airlines Privacy Litig., 2004 WL 1278459, at *5 (D.Minn.2004) (finding that the plaintiffs' intrusion claim failed because "[i]n this instance, Plaintiffs voluntarily provided their personal information to Northwest");
178. Dwyer v.Am.Express Co., 652 N.E.2d 1351, 1354 (111.App.1995) ("By using the American Express card, a cardholder is voluntarily, and necessarily, giving information to defendants ....").
179. Cameras installed in a restroom, or used to take up-skirt photographs, would be another matter.See, e.g., Video Voyeurism Prevention Act, 18 U.S.C.§ 1801 (2006);
180. Speer v.Ohio Dept.Rehab.& Corn, 624 N.E.2d 251 (Ohio Ct.App.1993).
181. Aaron Perzanowski, Fixing RAM Copies, 104 Nw.U.L.Rev.1067, 1083-84 (2010).
182. Jane Yakowitz, Tragedy of the Data Commons, 25 Harv.J.L.& Tech.1, 3-4 (2011).
183. Privacy advocates, the advertising industry, and the Federal Trade Commission are locked in debate over whether an IP address, or the information contained in a cookie, is "personally identifiable information." Fed.Trade Comm'n, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations for Businesses and Policymakers 18 (2012), available at http://ftc.gov/os/2012/03/120326privacyreport.pdf.The New Intrusion sidesteps this debate because, once a party accesses a cookie in order to communicate or interact with the end user for a purpose collateral or in tension with the original purpose for which it was generated, it is irrelevant that the advertiser does not know the name of the user, or does not know the user in a meaningful way.This is consistent with the goals that underlie the intrusion tort; since intrusion protects a person's seclusion from observation, it makes no difference whether a peeping torn actually knows the person he observes.It is the act of observing that violates the rights of the observed.
184. Robert Lee Hotz, The Really Smart Phone, Wall St.J.(Apr.22, 2011, 7:34 PM), http://online.wsj.com/article/SB10001424052748704547604576263261679848814. html?KEYWORDS=%22The+Really+Smart+Phone%22 ("[Cellphone] data can reveal subde symptoms of mental illness, foretell movements in die Dow Jones Industrial Average, and chart die spread of political ideas as they move through a community ....").
185. Thus far, GPS studies have relied on vehicles carrying GPS logging devices with the intent diat the data would be analyzed by the municipality or city conducting the studies.But the studies are enormously useful for studying travel time and delays, for assessing die effects (in traffic time) of construction or route alterations, and for evaluating whether traffic signals are timed correctly.These types of studies could become inexpensive and widespread standard practices for all jurisdictions if researchers are able to access the log data of commercial GPS providers.See GeoS-tats, TravTime, http://www.geostats.com/product-trav.htm (last visited Oct.11, 2012) (discussing die use of GPS to collect, analyze, and report traffic data).However, aggregated data is used for law enforcement purposes, such as to help determine where to establish speed traps.Such use is often perceived as violating the privacy of the GPS device-users.
186. Tim Stevens, TomTom User Data Sold to Dutch Police, Used to Determine Ideal Locations for Speed Traps, Engadget (Apr.27, 2011, 1:53 PM), http://www.engadget.com/2011/04/27/tomtom-user-data-sold-to-danish-police-used- to-determine-ideal (discussing how the Dutch police force is using TomTom navigation devices to determine where speed traps and cameras should be placed).It is possible diat die issue underlying the privacy concerns is diat law enforcement might have die wrong motivation in establishing speed traps.Data-assisted speed traps might do more to increase revenues and citation rates than they do to improve traffic safety.In diat case, a person might feel tricked for his or her unwitting contribution to die dataset diat enabled die police to create the speed trap.There are categories of government data uses diat can be carefully cabined or prohibited altogedier dirough use restrictions, but die capture of anonymized GPS data is not inherendy harmful.
187. "Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that Member States provide appropriate safeguards." Council Directive 95/46, art.6(1)(b), 1995 O.J.(L 281) 40 (EU).Note, though, diat die required "safeguards" demand that the data pose no risk of reiden-tification-a standard diat is impossible to meet-and forces data holders to choose between risking sanction or halting standard practices.
188. "Respect for Context" is defined as so: "[cjonsumers have a right to expect that organizations will collect, use, and disclose personal data in ways diat are consistent with the context in which consumers provide the data." Press Release, The White House, Office of the Press Sec'y, We Can't Wait: Obama Administration Unveils Blueprint for a "Privacy Bill of Rights" to Protect Consumers Online (Feb.23, 2012), http://www.whitehouse. gov/die-press-office/2012/02/23/we-can-t-wait-obama-administration-unveils- blueprint-privacy-bill-rights.
189. Smith v.Maryland, 442 U.S.735, 744 (1979).
190. The more lenient warrant requirements adopted in the Stored Communications Act (SCA) diat apply to routing data do not require probable cause.18 U.S.C.§ 2703(d) (2006).If web-tracking data is "unexposed" and deserving of full Fourth Amendment protection, die procedural protections of die SCA will not be constitu-tionally sufficient.
191. For a description of visceral notice, see M.Ryan Calo, Against Notice Skepticism, in Privacy (and Elsewhere), 87 Notre Dame L.Rev.1027, 1034-35 (2012).
192. I do not wish to speculate about social norms widi respect to behavioral advertising since the empirical evidence is so mixed.Survey after survey confirms diat, considered in isolation, Americans want to surf die Internet widiout creating a record of dieir transactions and activities.One study reports diat ninety-two percent of Americans believe diere should be a law requiring "websites and advertising compa- nies to delete all stored information about an individual, if requested to do so." Joseph Turow et al., Americans Reject Tailored Advertising and Three Activities That Enable It, 3 (2009), http://ssm.com/abstract=1478214;
193. see also Aleecia M.McDonald & Lorie F.Cranor, Americans' Attitudes About Internet Behavioral Advertising Practices, WPES '10: Proceedings of the 9th Annual ACM Workshop on Privacy in the Electronic Society 63 (2010), available at http://dl.acm.org/citation.cfm?id=1866929.However, these studies repeat a flaw diat undermines the credibility of die findings: diey do not ask respondents whether they would prefer an alternative reality where the same online content contains about twice die amount of (non-targeted) advertising, or where diey pay for content.The handful of studies that do force survey respondents to state dieir preferences in the context of privacy tradeoffs find that a majority of Internet-users prefer free content with targeted ads over odier types of privacy-protecting options like pay walls or increased quantity of advertising, though some of these studies too have methodological flaws.
194. Karl W.Lendenmann, PreferenceCen-tral, Consumer Perspectives on Online Advertising-2010, at 2-3, 11 (2010), available at http://www.slideshare.net/ mfredactie/preference-central-surveyfull report.Note that die phrasing of the question, and the ordering of die answer options, are objectionable.The survey does not offer respondents die option to view die same content widi more advertising; the closest is an option for "somewhat limited online information or less functional services."
195. see also Jacqui Cheng, 53% of Mobile Users Happy to Hand Over Location Data For Discounts, Ars Technica (Aug.17, 2011, 1:25 PM), http://arstechnica. com/gadgets/2011/08/53-of-mobile-users-happy-to-hand-over-location-data-for- coupons ("[M]ore dian half of all consumers are willing to exchange dieir mobile location data for content diat is relevant to them at die moment....");
196. David Hallerman, Behavioral Targeting Attitudes, eMarketer (July 29, 2008), http://www.emarketer.com/Article.aspx?1006456&R=1006456 (finding that fifty-five percent of respondents are "very" or "somewhat" comfortable with behavioral advertising).
197. John H.Mansfield, Informed Choice in the Law of Torts, 22 La.L.Rev.17, 31 (1961) ("Consent is die right term to use when die plaintiff was willing that a certain event occur, probably some conduct on die part of die defendant, because he desired an invasion of a normally protected interest.").
198. However, in light of die recent Supreme Court holding in Concepcion, websites might enjoy de facto immunity from intrusion claims by requiring all visitors to arbitrate dieir claims individually.AT&T Mobility LLC v.Concepcion, 131 S.Ct.1740, 1753 (2011).
199. Chris Jay Hoofnagle & Jennifer King, What Californians Understand About Privacy Online (Sept.3, 2008) (unpublished article), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1262130.
200. Groundwork for diese questions has already been laid by Andrea Matwyshyn.Andrea Matwyshyn, Technoconsen(t)sus, 85 Wash.U.L.Rev.529, 551-54 (2008).
201. Christine Jolls has begun this very inquiry.Christine Jolls, Rationality and Consent in Privacy Law, (Dec.10, 2010) (unpublished article), available at http://www.law.yale.edu/faculty/CJolls.htm.
202. For example, die privacy policy for AudienceScience claims that die site will replace any cookie of a user who opts out of information-collection with a new cookie instructing the website to stop collecting information.What actually happens, according to Stanford researchers, is that AudienceScience keeps a
203. In re JetBlue Airways Corp.Privacy Litig., 379 F.Supp.2d 299, 330 (E.D.N.Y.2005);
204. Dyer v.Northwest Airlines Corp., 334 F.Supp.2d 1196, 1200 (D.N.D.2004).
205. See Feld v.Feld, 783 F.Supp.2d 76, 78 (D.D.C.2011).
206. Danielle Keats Citron, Law's Expressive Value in Combating Cyber Gender Harassment, 108 Mich.L.Rev.373, 393 (2009).
207. Anodier potential impediment is the recent U.S.Supreme Court case AT&T Mobility v.Conception, 131 S.Ct.1740 (2011), which held that class action waivers in standard-form contracts are enforceable.Id.at 1753.The parameters of that holding are still quite unclear.
208. See Myrium Gilles & Gary Friedman, After Class: Aggregate Litigation in the Wake o/AT&T Mobility v.Concepcion, 79 U.Chi.L.Rev.623, 639-40 (2012).
209. A new firm called Evidon is offering the behavioral marketing industry's first "assurance platform." It organizes industry best practices that would, if followed, receive Evidon's trusted seal of approval.Turn Names Evidon Preferred Provider of Compliance Services, PRWeb (May 4, 2011), http://www.prweb.com/releases/prweb2011/ 5/prweb8377655.htm.
210. Mike Butcher, Stupid EU Cookie Law Will Hand the Advantage to the US, Kill Our Startups Stone Dead, TechCrunch Europe (Mar.9, 2011), http://eu.techcrunch.com/2011/03/09/stupid-eu-cookie-law-will-hand-the- advantage-to-the-us-kill-our-startups-stone-dead/.The European cookie law would require any website that uses Google Analytics to keep track of the number of visitors to a website, who would also have to comply with die opt-in consent requirements.
211. See Jeffrey Rosen, The Unwanted Gaze 120 (2000) (discussing shame as a basis for harm);
212. Daniel Solove, The Future of Reputation 114-17 (2007) (discussing damage to reputation);
213. Viktor Mayer-Schonberger, Delete 2 (2009).
214. David Kravets, Mug-Shot Industry Will Dig Up Your Past, Charge You to Bury It Again, Wired (Aug.2, 2011, 1:52 PM), http://www.wired.com/threadevel/ 2011/08/mugshots/.
215. Sex List Rating Female University Student's Lovers Becomes Internet Sensation, MailOnline (Oct.8, 2010, 11:49 PM), http://www.dailymail.co.uk/news/ article-131 8575/Duke-University-alumni-Karen-Owens-sex-list-internet-sensation. html (" [A] student has been left devastated after an elaborate sex list she created ...became an internet sensation.").
216. Matt Warman, Online Right "To Be Forgotten" Confirmed by EU, The Telegraph (Mar.17, 2011, 12:53 PM), http://www.telegraph.co.uk/technology/ internet/8388033/Online-right-to-be-forgotten-confirmed-by-EU.html ("Under die new [EU] legisla- tion, users could sue websites for invading their privacy and would have a right to be entirely "forgotten" online.").
217. But see Laura A.Heymann, The Law of Reputation and the Interest of the Audience, 52 B.C.L.Rev.1341 (2011) (arguing that legal frameworks for reputational interests must account for the public's interest in access to the information).
218. Lori Andrews, Facebook Is Using You, N.Y.Times, Feb.5, 2012, at SR7, available at http://www.nytimes.com/2012/02/05/opinion/sunday/facebook-is-using- you.html?-r=l&pagewanted=all.
219. See Eric Goldman, The Regulation of Reputational Information, in The Next Digital Decade: Essays on the Future of the Internet 293, 295-96 (B.Szoka & A.Marcus eds., 2010) (discussing in detail the value that reputational information adds to consumer trust and well-functioning markets).
220. Jonathan Krim, Subway Fracas Escalates Into Test of the Internet's Power to Shame, Wash.Post (July 7, 2005), http://www.washingtonpost.com/wp-dyn/ content/article/2005/07/06/AR2005070601953.html;
221. see also Daniel Solove, The Future of Reputation 1-2 (2007).
222. Vosburg v.Putney, 50 N.W.403 (Wis.1891).Or, perhaps she is more similar to the accident victim whose loss of life or limb was caused by non-negligence.Either way, we traditionally let die chips fall where they may.
223. Robert Post raises a similar objection to Jeffrey Rosen's claim that Bill Clinton's sexual exploits ought to have been kept private.Robert C.Post, Review Essay, Three Concepts of Privacy, 89 Geo.L.J.2087, 2089-90 (2001)
224. reviewing Jeffrey Rosen, The Unwanted Gaze (2000).
225. See Sheetz v.The Morning Call, Inc., 946 F.2d 202 (3d Cir.1991).Another example, discussed in Part II, supra, is a police officer's use of a state wiretap statute to prevent a citizen from recording an interaction the citizen believes to be corrupt or unethical.
226. Am.Civil Liberties Union of 111.v.Alvarez, 679 F.3d 583 (7th Cir.2012).
227. McCormick v.England, 494 S.E.2d 431, 435 (S.C.Ct.App.1997) ("Being a fiduciary relationship, mutual trust and confidence are essential."). Courts look for a degree of kinship between the parties, or disparities in age, health, or mental conditions, or disparities in training and experience in order to determine whedier two people are in a fiduciary relationship.
228. See Pottinger v.Pottinger, 605 N.E.2d 1130, 1137 (111.App.Ct.1992).
229. Tarasoff v.Regents of Univ.of Cal., 551 P.2d 334, 347 (Cal.1976) (invoking duty to warn likely victim of psychotfierapy patient);
230. Pate v.Threlkel, 661 So.2d 278, 282 (Fla.1995) (invoking duty to warn patients' children about genetic conditions).
231. The tort of confidentiality does not enjoy the recognition that Prosser's privacy torts do, and it does not appear in the Second Restatement.But many jurisdictions recognize and enforce the duty of confidentiality in contexts ranging from doctors to bankers to accountants.Neil M.Richards & Daniel J.Solove, Privacy's Other Path: Recovering the Law of Confidentiality, 96 Geo.L.J.123 (2007).I am in agreement with Richards and Solove, and with Susan Gilles and Danielle Citron as well, that a clearer and more robust tort of breach of confidentiality could allow the common law to react to harmful disseminations of personal information.
232. Susan Gilles, Promises Betrayed: Breach of Confidence As a Remedy for Invasions of Privacy, 43 Buff.L.Rev.1, 4 (1995).The tort of public disclosure of private facts occasionally provides recourse for confidentiality-style harms.The disclosure tort has imposed responsibility on the police force to hold information about accident and crime victims in confidence, as well as the information from cooperative witnesses.
233. See Catsouras v.Dep't of Cal.Highway Patrol, 104 Cal.Rptr.3d 352 (Ct.App.2010) (providing recovery to a decedent's family when a paramedic took pictures at the scene of a deadly accident and sent the pictures to friends and acquaintances on Halloween).On die other hand, police are not expected to keep die confidences of suspects.
234. Wilson v.Freitas, 214 P.3d 1110 (Haw.Ct.App.2009).
235. Health Insurance Portability and Accountability Act of 1996, Pub.L.No.104-191, § 1173,110 Stat.1936, 2024-26
236. codified as amended in scattered sections of 18, 26, 29, and 42 U.S.C..
237. Fair Credit Reporting Act, 15 U.S.C.§ 1601 (2006).
238. Family Educational Rights and Privacy Act, 20 U.S.C.§ 1232g (2006).
239. Telecommunications Act of 1996, 47 U.S.C.§ 222 (2006);
240. Stored Communications Act, 18 U.S.C.§ 2702 (2006) (stating that business records may be disclosed to non-government tiiird parties, but the contents of electronic communications may not).
241. Gramm-Leach-Bliley Act, 15 U.S.C.§ 6801.
242. Children's Online Privacy Protection Act of 1998, id.§ 6502.
243. Lior Jacob Strahilevitz, Reunifying Privacy Law, 98 Cal.L.Rev.2007, 2007 (2010).
244. Peter Kilbridge, The Cost ofHIPAA Compliance, 348 N.Eng.J.Med.1423, 1424 (2003).
245. Cal.Penal Code § 637.6 (West 2010).
246. Video Privacy Protection Act of 1988, 18 U.S.C.§ 2710 (2006).
247. Michael Dolan, The Bork Tapes Saga, The Am.Porch, http://www.theamerican porch.com/bork2.htm (last visited Oct 24, 2012).
248. Adam Clark Estes, Why Robert Bork (Indirectly) Kept Netflix OffFacebook, Atlantic Wire (July 26, 2011), http://www.theadanticwire.com/technology/2011/07/ why-rob-ert-bork-indirectly-kept-netflix-facebook/40408 (discussing how the VPAA discouraged Netflix from launching Facebook integration in the U.S.).
249. Restatement (Second) of Torts § 652D (1977).
250. In most jurisdictions the "publicity" element requires disclosure to the general public, but in some states disclosure to an especially important audience will suffice.See Miller v.Motorola, Inc., 560 N.E.2d 900, 903 (111.1990) (finding that disclosure to the plaintiff's work colleagues was sufficient to fulfill the "publicity" element).
251. 729 F.Supp.376 (D.NJ.1990).In the case, the plaintiff's HIV status was initially disclosed to a police officer, who then told other people in his department for no health-or public safety-related reason.
252. Dor Jacob Strahilevitz has shown that courts' determinations in disclosure cases tend to track theories of social networks.If a personal fact is shared with a support group made up of 20 members, the fact is treated as more private than if it is shared with 20 unconnected friends.Strahilevitz's social network theory is quite use- ful in explaining which contexts might have a modicum of implied use restriction.See Lior Jacob Strahilevitz, A Social Networks Theory of Privacy, 72 U.Chi.L.Rev.919 (2005).
253. And, because of the first factor, disclosure torts would avoid imposing liability when the plaintiff puts no effort into keeping the information private.This reasoning lines up with Judge Frank Easterbrook's argument that reasonable restrictions on information will limit certain types of information that have the effect of diminishing the overall quality and quantity of publicly available information.Frank H.Easter-brook, Insider Trading, Secret Agents, Evidentiary Privileges, and the Production of Information, 1981 Sup.Ct.Rev.309, 313 (1981).
254. See Cal.Health & Safety Code § 120975 (West 2006);
255. Doe v.Se.Pa.Transp.Auth., 72 F.3d 1133, 1140 (3d Cir.1995);
256. Doe v.Borough of Barrington, 729 F.Supp.376, 381 (D.N.J.1990);
257. Margo Kaplan, Rethinking HIV-Exposure Crimes, 87 Ind.L.J.(forthcoming 2012).
258. See Sipple v.Chronicle Publ'g Co., 201 Cal.Rptr.665, 670 (Ct.App.1984) (finding the disclosure of Sipple's sexual orientation was a matter of public concern because the newspaper story was exploring the possible homophobia of President Ford).Sipple's parents disowned him after the national news coverage broke, showing the high stakes when this sort of information is released.
259. Cal.Health & Safety Code § 120975.
260. Children's Hosp.& Res.Ctr.Oakland v.Workers' Comp.Appeals Bd., 2010 WL 3936050, at *1 (Cal.Ct.App.Oct.8, 2010).
261. Klepetko v.Reisman, 839 N.Y.S.2d 101 (App.Div 2007).
262. But see Yonaty v.Mincolla, 945 N.Y.S.2d 774 (N.Y.App.Div.2012) (declining to follow Klepetko).
263. Ylan Q.Mui, A Deep Dive into Consumers' Habits: Unregulated Firms' Use of Shadowy Tactics can Upend Credit Scores, Wash.Post, July 17, 2011, at Al.
264. Michael Turner et al., You Score, You Win: The Consequences of Giving Credit Where Credit Is Due, Pol.& Econ.Res.Council (July 2008), available at http://perc.net/files/downloads/web-layout-you-score.pdf (discussing the use of utility bills in assessing creditworthiness).
265. This phenomenon is completely overlooked by the National Consumer Law Center, which concluded that utility credit reporting would adversely affect low-income credit applicants.John Howat, Full Utility Credit Reporting: Risks to Low Income Consumers, Nat'l Consumer Law Ctr.1 (December 2009), available at http://www.nclc.org/images/pdf/credit-reports/credit-reports-full-utility-dec 2009.pdf.The report argues diat, because fourteen percent of households in the lowest income quindle missed a payment on dieir udlity bill (compared to just over two percent for die highest income quintile), a credit measure diat takes utility bills into account will disproportionately harm die poor.
266. Udlity credit reports, like all reports used to make credit and hiring decisions, ought to be paired with regulation allowing for consumers to check for the accuracy of their records, and to challenge any report believed to contain inaccurate informa-don.The Fair Credit Reporting Act serves as a model for such a scheme.15 U.S.C.§§ 1681e(b), 1681iA(l) (2006).
267. Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e (2006).
268. I include just a smattering of the scholarship here.See generally Richard Epstein, Forbidden Grounds (1991) (discussing die application of the antidiscrimination principle to employment relationships in the public and private sectors);
269. Kimberle' Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv.L.Rev.1331 (1988) (arguing that antidiscrimination law, has been fairly successful in eliminating the symbolic manifestations of racial oppression, but has not been able to preclude the continued subordination of Blacks);
270. John J.Donohue, Anti-Discrimination Law, The New Palcrave Dictionary of Economics (Steven N.Durlauf & Lawrence E.Blume eds., 2d ed.2008).
271. The one exception seems to be the topic of genetic privacy, which inspires privacy and discrimination scholars to synchronize their efforts.See, e.g., Michael S.Yesley, Protecting Genetic Difference, 13 Berkeley Tech.LJ.653, 659-63 (1998) (discussing various states' laws regarding genetic privacy and genetic discrimination).
272. George J.Stigler, An Introduction to Privacy in Economics and Politics, 9 J.Legal Stud.623, 630 (1980).
273. 15 U.S.C.§ 1681bA(3)(B) (2006).
274. So-hyun Joo & E.Thomas Garman, The Potential Effects of Workplace Financial Education Based on the Relationship Between Personal Financial Wellness and Worker Job Productivity, 2 Pers.Fins.& Worker Productivity 163 [pincite] (1998).
275. See John E.Matejkovic & Margaret E.Matejkovic, Whom to Hire: Rampant Misrepresentations of Credentials Mandate the Prudent Employer Make Informed Hiring Decisions, 39 Creighton L.Rev.827, 840-42 (2005);
276. Cathie A.Shattuck, The Tort of Negligent Hiring and the Use of Selection Devices: The Employee's Right of Privacy and the Employer's Need to Know, 11 Indus.Rel.LJ.2, 5-8 (1989).
277. See generally Meredidi J.Fried, Note, Helping Employers Help Themselves: Resolving the Conflict Between the Fair Credit Reporting Act and Title VII, 69 Fordham L.Rev.209 (2000) (discussing employer liability for sexual harassment and employer obligations under the Fair Credit Reporting Act).
278. Mary Graham, Democracy by Disclosure 140 (2002).
279. Orin S.Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv.L.Rev.476, 525-42 (2011).
280. Daniel Kahneman et al., Anomalies: The Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J.Econ.Persp.193, 197-99 (1991).
281. Neil Postman, Technopoly 3-4 (1992).
282. 1 Plato with an Engush Translation 563 (Harold N.Fowler trans., 1913).
283. Matt Ridley, The Rational Optimist 160 (2010).
284. Sorrell v.IMS Health Inc., 131 S.Ct.2653, 2672 (2011).