Lior Strahilevitz, Reunifying Privacy Law

Lior Strahilevitz, Reunifying Privacy Law

Comment by: Ryan Calo

PLSC 2010

Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1615101

Workshop draft abstract:

In 1890 Samuel Warren and Louis Brandies proposed a unified theory of invasion of privacy tort liability.  Over the subsequent decades, information privacy law became increasingly fragmented and decreasingly coherent.  William Prosser’s 1960 article, Privacy, which heavily influenced the Restatement of Torts, endorsed and hastened this trend toward fragmentation, which spread from tort law to the various statutory branches of information privacy law.  This article argues for the reunification of privacy law in two connected ways.  First, Prosser’s fragmented privacy tort should be replaced with a unitary tort for invasion of privacy that looks to the private or public nature of the information, the degree to which a defendant’s conduct violates existing social norms, and the social welfare implications of the defendant’s conduct.  Second, the reunified common law of torts should become the model for judicial interpretation of various other branches of information privacy law, such as the Freedom of Information Act’s privacy provisions, the Privacy Act, and the constitutional right of information privacy.  The Article explains how this can be done and why it is desirable.  Indeed, in its most recent Freedom of Information Act and Privacy Act cases, the United States Supreme Court has suggested that drawing on common law tort principles is the appropriate methodology for interpreting privacy-related federal statutes.

The final section of the article argues that the pending United States Supreme Court case of Nelson v. NASA is an ideal vehicle for pushing the law of information privacy back towards its relatively coherent and unified origins.  Nelson will be the first Supreme Court privacy case in thirty-three years to confront the question of whether the Constitution protects a right to information privacy apart from the Fourth Amendment context.  Because the common law tort cause of action and constitutional action involve similar harms and considerations, it is appropriate to reconcile the presently divergent doctrines, but this could be done in one of two ways.  The most sensible approach to reunification is to conclude, as the Sixth Circuit has, that there is no such thing as a constitutional right to information privacy, and that such rights are appropriately vindicated via tort remedies.  An alternative approach would be to recognize the existence of a constitutional right, as most circuit courts have, but to hold that the elements of a constitutional violation mimic those associated with the reunified privacy tort.