Beyond Contract: Utilizing Restitution to Reach Shadow Offenders & Safeguard Information Privacy, Stanford University Press, Forthcoming
Marcy Peek, BEYOND CONTRACT; UTILIZING RESTITUTION TO REACH SHADOW OFFENDERS, & SAFEGUARD INFORMATION PRIVACY, Stanford University Press, Forthcoming
23 Pages Posted: 20 Jun 2005
This essay is a book chapter in a forthcoming book by Stanford University Press (a collection of papers written in conjunction with a March 2004 privacy and security conference at Stanford Law School). The essay argues that liability under the theory of restitution should be imposed on third party companies that mishandle an individual's personal data. These third party companies are generally information brokers and aggregators that compile personal information on millions of individuals from a variety of commercial and governmental sources. The author refers to such entities as "shadow offenders" because they generally have no direct commercial or contractual relationship with consumers and lack privity of contract with consumers. Largely because of this lack of a direct commercial relationship, shadow offenders often escape notice and legal liability for their handling of personal data. A restitutionary remedy for victims of improper data use and handling at the hands of such entities would apply in cases wherein shadow offenders are unjustly enriched by their mishandling or misuse of personal information. Such a remedy would incentivize such third party companies to properly safeguard and handle personal information where, traditionally, few such incentives have existed. In addition, a remedy based in restitution would not only allow for a form of recovery that avoids the problems associated with attempting to bring causes of action based primarily in contract, but would also offer a means of redress that does not depend on conceptualizing personal data as property or calculating the monetary value of data to the individual. Finally, in contrast to public remedies obtained under consumer protection statutes, the restitutionary remedy allows for individualized recovery by consumers whose personal information is mishandled, misused, or improperly safeguarded.
Keywords: Restitution, privacy, identity theft, social security numbers, personal information, data, csr, contract,security, security breach, remedies
JEL Classification: G3, K13, K2, K4, M14, K10, K20
Suggested Citation: Suggested Citation