Privacy as Quasi-Property

Abstract

Courts and commentators struggle to apply privacy law in a way that conforms to the intuitions of the average person. It is often thought that the reason for this is the absence of an agreed upon conceptual definition of privacy. In fact, the lack of a description of the interest invaded in a privacy matter is the more substantial hurdle. This article, Privacy as Quasi-Property, fills this gap in the literature.

Quasi-property is a relational entitlement to exclude, that is, the right to exclude specific actors from a resource given a specific event, a given type of behavior, or a given relationship between the actors. There is no freestanding right to exclude from a quasi-property interest; the right to exclude must be triggered by behaviors of the plaintiff and defendant. A defendant is identified based on a trigger arising from a relationship, action, or harm to plaintiff. The law communicates that an actor must not interfere with a quasi-property interest with an exclusionary signal that is independent of the resource. Prominent examples of doctrinal areas that employ the quasi-property model are information misappropriation and trade secret law.

I argue that quasi-property provides the essential model for assessing the interest held by a privacy claimant against a defendant, and whether it has been infringed. The quasi-property model can account for the four privacy torts first advanced by William Prosser and adopted as law in the vast majority of states. At the same time, it removes several misleading and unwieldy features of the Restatement approach, including the offensiveness and newsworthiness standards, and enables privacy tort law to address Information Age invasions that the four Restatement torts do not address. Furthermore, the quasi-property approach has implications for developing privacy rules for enforcement by other actors, such as administrative agencies, and even in conceptualizing other areas of privacy law outside of tort law, such as Fourth Amendment jurisprudence.

Keywords: privacy, information, torts, private law, property