Untangling Privacy: Losses Versus Violations

63 Pages Posted: 24 Feb 2022

See all articles by Jeffrey M. Skopek

Jeffrey M. Skopek

University of Cambridge; Harvard Law School

Date Written: July 1, 2020

Abstract

It is widely thought that the central problems posed by new personal data mining technologies are privacy related. There is also an emerging consensus that privacy rights lack a unified core. Both conclusions are mistaken and derive from the conflation of privacy losses and violations.

Differentiating these concepts generates a new understanding of privacy. It clarifies the outcome-based criteria that define privacy losses, the path-based criteria that define privacy violations, and the relationship between them.

This analysis also leads to two further insights. First, regarding the coherence of the law, it demonstrates how a unified theory of privacy rights is possible despite significant disagreement about their content. Second, regarding the content of the law, it challenges orthodox views about how privacy rights are violated by the aggregation, unconsented use, and inference of personal data.

While these contested uses of data might be restricted on other grounds, the actual interests at stake may not justify restrictions that are as expansive as those often envisioned. Thus, untangling losses and violations reveals not only the unity of privacy but also its limits.

Keywords: privacy, personal data, data aggregation, inferences, Fourth Amendment, Kyllo, Carpenter

Suggested Citation

Skopek, Jeffrey M., Untangling Privacy: Losses Versus Violations (July 1, 2020). Iowa Law Review, Vol. 105, No. 5, 2020, Available at SSRN: https://ssrn.com/abstract=4038504

Jeffrey M. Skopek (Contact Author)

University of Cambridge ( email )

Faculty of Law
10 West Rd
Cambridge, CB3 9DZ
United Kingdom

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

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