A Prolegomenon to Any Future Restatement of Privacy

Abstract

This Essay constitutes my contribution to the "Restatement of..." symposium, jointly sponsored by the Brooklyn Law School and the American Law Institute (ALI). Since the 1950s, the ALI has been significantly engaged with the project of defining and protecting important privacy interests. However, the ALI's involvement has occurred incident to broader law reform projects largely unrelated to privacy as such. For example, the ALI’s work to secure reproductive rights and sexual autonomy arose in the context of revisions of the Model Penal Code – rather than as part of a comprehensive effort to restate privacy law as such. To date, the ALI’s engagement with privacy has occurred in this fashion; privacy receives coverage incident to Restatements in other substantive areas of law. The ALI should consider whether this piecemeal approach to privacy law represents the best approach. An alternative approach would be to undertake a comprehensive and sustained effort to restate privacy law as a distinct field. Significant benefits could be associated with a more systematic and sustained treatment of privacy as such. On the other hand, a privacy-specific approach would present serious difficulties, beginning with the problem of ascertaining what rights and interests properly fall within the rubric of “privacy,” the public/private distinction and its important impact on privacy rights, and the thorny conflicts that inevitably arise between securing privacy and other important legal interests (such as freedom of speech and the press). This Essay posits that it would be quite difficult – perhaps even impossible – to address these issues successfully. I suggest that utilizing a comparative law analysis to understanding and defining privacy could provide some necessary, indeed essential, baselines that would help to facilitate the creation of a comprehensive Restatement of Privacy Law.

Keywords: privacy, substantive due process, American Law Institute, ALI, restatement, defamation, First Amendment, comparative law, dignity, personal honor, Basic Law