The Boundaries of Privacy Harm

31 Pages Posted: 19 Jul 2010 Last revised: 4 Oct 2012

Ryan Calo

University of Washington - School of Law; Stanford University - Law School; Yale Law School

Date Written: July 16, 2010

Abstract

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the unwanted perception of observation. This category describes unwelcome mental states – anxiety, embarrassment, fear – that stem from the belief that one is being watched or monitored. Examples include everything from a landlord listening in on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against that person. These are negative, external actions justified by reference to personal information. Examples include identity theft, the leaking of classified information that reveals an undercover agent, and the use of a drunk-driving suspect’s blood as evidence against him.

The subjective and objective categories of privacy harm are distinct but related. Just as assault is the apprehension of battery, so is the unwanted perception of observation largely an apprehension of information-driven injury. The categories represent, respectively, the anticipation and consequence of a loss of control over personal information.

The approach offers several advantages. It uncouples privacy harm from privacy violations, demonstrating that no person need commit a privacy violation for privacy harm to occur (and vice versa). It creates a “limiting principle” capable of revealing when another value – autonomy or equality, for instance – is more directly at stake. It also creates a “rule of recognition” that permits the identification of a privacy harm when no other harm is apparent. Finally, the approach permits the sizing and redress of privacy harm – including privacy in public – in novel ways.

Keywords: privacy, harm

Suggested Citation

Calo, Ryan, The Boundaries of Privacy Harm (July 16, 2010). Indiana Law Journal, Vol. 86, No. 3, 2011. Available at SSRN: https://ssrn.com/abstract=1641487

Ryan Calo (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

Stanford University - Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Yale Law School ( email )

127 Wall Street
New Haven, CT 06511
United States

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