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 ones 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
Public disclosure of private facts
Misappropriation
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 identitymy name or likenessthat
  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?