Reunifying Privacy Law
33 Pages Posted: 24 May 2010
Date Written: May 24, 2010
In the years since Samuel Warren and Louis Brandies proposed a unified theory of invasion of privacy tort liability, American information privacy law became increasingly fragmented and decreasingly coherent. William Prosser’s 1960 article, Privacy, which heavily influenced the Restatement of Torts, endorsed and hastened this trend toward fragmentation, which spread from tort law to the various statutory branches of information privacy law. This paper argues for the reunification of privacy law in two connected ways. First, Prosser’s fragmented privacy tort should be replaced with a unitary tort for invasion of privacy that looks to the private or public nature of the information, the degree to which a defendant’s conduct violates existing social norms, and the social welfare implications of the defendant’s conduct. Second, the reunified common law of torts should become the model for judicial interpretation of various other branches of information privacy law, such as the Freedom of Information Act’s privacy provisions, the Privacy Act, and the constitutional right of information privacy. The paper examines how this reunification project can be accomplished, why it is desirable, and whether it is consistent with the Supreme Court’s methodological guidance in privacy controversies.
The final section of the paper argues that the pending United States Supreme Court case of Nelson v. NASA is an ideal vehicle for pushing the law of information privacy back towards its relatively coherent and unified origins. Nelson will be the first Supreme Court case in thirty-three years to confront squarely the question of whether the Constitution protects a right to information privacy apart from the Fourth Amendment context. Because the common law tort cause of action and constitutional action involve similar harms and considerations, it is appropriate to reconcile the presently divergent doctrines, though this could be done in one of two ways. The most sensible approach to reunification is to conclude, as the Sixth Circuit has, that there is no such thing as a constitutional right to information privacy, and that such rights are appropriately vindicated via tort or statutory remedies. An alternative approach would be to recognize the existence of a constitutional right, as most circuit courts have, but to hold that the elements of a constitutional violation mimic those associated with the reunified privacy tort.
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