Introduction To Privacy Law

1. Introduction To Privacy Law Richard Warner

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

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

4. Activities Use Collection Processing Distribution Misappropriation Public disclosure of private facts Intrusion upon seclusion False light

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

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

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

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

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

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

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