Private Rights of Action in Privacy Law
William & Mary Law Review, Forthcoming
FSU College of Law, Law, Business & Economics Paper No. 21-09
55 Pages Posted: 22 Dec 2021 Last revised: 30 Mar 2022
Date Written: December 21, 2021
Many privacy advocates assume that the key to providing individuals with more privacy protection is strengthening the power government has to directly sanction actors that hurt the privacy interests of citizens. This Article contests the conventional wisdom, arguing that private rights of action are essential for privacy regulation. First, I show how private rights of action make privacy law regime more effective in general. Private rights of action are the most direct regulatory access point to the private sphere. They leverage private expertise and knowledge, create accountability through discovery, and have expressive value in creating privacy-protective norms. Then to illustrate the general principle, I provide examples of how private rights of actions can improve privacy regulation in a suite of key modern privacy problems. We cannot afford to leave private rights of action out of privacy reform.
Keywords: Privacy law, Private law theory, Nonconsensual Pornography, Data Insecurity, Digital Market Manipulation, Government Surveillance
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