The Mythical Right to Obscurity: A Pragmatic Defense of No Privacy in Public

Abstract

In several states, citizens who videotaped police misconduct and distributed the videos via the Internet recently were arrested for violating state wiretapping statutes. These arrests highlight a clash between two key interests - the public’s desire to hold the officers accountable via exposure and the officers’ desire to keep the information private. The arrests also raise an oft-debated privacy law question: When should something done or said in public nevertheless be legally protected as private?

For decades, the answer has been: "There can be no privacy in that which is already public." However, given recent technological developments (e.g., cell phone cameras and YouTube), some scholars suggest that the law sometimes should restrict the exposure of truthful information shared in public. Like the police who claim to need privacy to do their job, these scholars claim that people need privacy in public in order to feel dignified and to feel comfortable developing new ideas. In their pragmatic balance, these privacy-related needs trump exposure-related benefits.

In this Article, I argue that these scholars have overstated privacy-related harms and understated exposure-related benefits. After documenting and correcting these errors, I show how the proper balance favors exposure over privacy in all but a few special cases. Ultimately, I conclude that the law should continue to protect the mass exposure of truthful yet embarrassing information via the "no privacy in public" rule. Otherwise, we risk sacrificing the many benefits of exposure - including those resulting from exposure of police misconduct - on the altar of a mythical right to obscurity.

Keywords: privacy, technology, exposure