The New Intrusion

Abstract

The tort of intrusion upon seclusion offers the best theory to target legitimate privacy harms in the information age. This Article introduces a new taxonomy that organizes privacy regulations across four key stages of information flow - observation, capture (the creation of a record), dissemination, and use. Privacy scholars typically propose placing constraints on the dissemination and re-use of personal information, and these dominant models are at the heart of President Obama’s Consumer Privacy Bill of Rights. But these restrictions conflict with the First Amendment and other important shared values. Instead, observation is the most promising stage for legal intervention.

Intrusion imposes liability for conduct - offensive observations. The tort is theoretically coherent and constitutionally sound because an individual’s interests in seclusion co-exist comfortably with society’s interests in data dissemination. This puts intrusion in stark contrast with other privacy models, where the alleged harm is a direct consequence of an increase in knowledge. The classic intrusion tort can adapt sensibly to new technologies when it is reduced to two essential elements: (1) an observation, (2) that is offensive. This approach vindicates privacy law’s historical roots in torts and offers a path to principled privacy regulation.

Keywords: privacy, information privacy, data privacy, Fair Information Practices, intrusion, intrusion upon seclusion, confidentiality, privacy torts, Prosser, Warren and Brandeis, First Amendment