Reasonable Expectations and the Erosion of Privacy
74 Pages Posted: 4 Mar 2012
Date Written: 2002
This Article examines how the prevailing legal conception of privacy facilitates the erosion of privacy. The law generally measures privacy by reference to society's reasonable expectation of privacy. If we think of the universe of legally private matters as a sphere, the sphere will contract or (at least in theory) expand in accordance with changing social expectations. This expectation-driven conception of privacy in effect establishes a privacy marketplace, analogous in both a literal and metaphorical sense to a marketplace of ideas. In this marketplace, societal expectations of privacy fluctuate in response to changing social practices. For this reason, privacy is susceptible to encroachment at the hands of large institutional actors who can control this marketplace by affecting social practices.
This Article also identifies two essential elements of the erosion of privacy: embedded imprecision and internalization. We find imprecision embedded in the expectation-driven conception of privacy because of the inevitable gray area between what society clearly expects to be protected (that is, private), and what it clearly understands to be unprotected. Effective encroachment occurs through incremental incursions into this gray area of unsettled expectations. Moreover, individuals internalize each incremental step of encroachment, and thereby lose any sense that privacy was once possible in the encroached upon area. Because of this internalization, the expectation-driven privacy test cannot account for the cumulative effect of successive encroachments. Instead, its focus on the current level of expectations facilitates the incremental erosion of privacy.
Finally, this Article examines pervasive failures in the literal and metaphorical privacy marketplaces. Given the expectation-driven vulnerability discussed above, preservation of privacy depends upon the individual's ability to resist encroachment into the private sphere. However, informational asymmetry, unequal bargaining power, and collective action problems conspire against them in both the economic and political marketplaces. Equally problematic are the inevitable unintended consequences that flow from any single encroachment. These phenomena stack the deck against those who would preserve the private sphere, and in favor of those who benefit from its erosion. Without some structural changes to restore the balance, the erosion of privacy may be a foregone conclusion.
Several caveats are appropriate at the outset. First, the term “privacy” means different things to different people. To clarify, this Article refers to what many call “information privacy,” rather than the fundamental personal autonomy to which others have affixed the privacy label. Alan Westin provided the classic definition of information privacy--the claim of individuals or groups to determine the conditions under which information about themselves is communicated to others. Furthermore, the terms “public sector” and “private sector” risk introducing the notion of information privacy where it does not belong. This Article therefore avoids the terms wherever possible.
This Article sometimes refers to a “sphere” of privacy that can expand or contract, while recognizing that one cannot formally quantify privacy in this fashion, because the term “privacy” lacks substance when divorced from a specific social context. Terms suggesting a measurable sphere of privacy that we can observe expanding or shrinking are intended only to convey the sense that matters once considered private can subsequently lose that status, and vice versa.
Finally, the purpose here is not to argue for or against specific practices. Although many specific surveillance techniques or data collection practices are mentioned, this is primarily to illustrate their role in shaping expectations of privacy. Many of the practices mentioned below will find proponents and opponents, each with differing views on whether the practices invade a reasonable expectation of privacy. In fact, that split of opinion illustrates the imprecision embedded in the expectation-driven conception of privacy. Society will inevitably disagree about whether certain matters should be protected as private, and the incremental erosion of privacy occurs in this gray area of unsettled expectations.
Keywords: Privacy, reasonable expectation of privacy, privacy torts, fourth amendment
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