Joel Reidenberg, Privacy in Public
Comment by: Franziska Boehm
Workshop draft abstract:
The existence and contours of privacy in public are in a state of both constitutional and societal confusion. As the concurrences in U.S. v. Jones suggested, technological capabilities and deployments undermine the meaning and value of the 4th Amendment’s third-party and ‘reasonable expectation of privacy’ doctrines. The paper argues that the conceptual problem derives from the evolution of four stages of development in the public nature of personal information. In the first stage, the obscurity of information in public provided protection for privacy and an expectation of privacy. In the second stage, accessibility begins to erode the protection afforded by obscurity. The third stage, complete transparency of information in public, erases any protection through obscurity and undercuts any privacy expectations. Finally, the fourth stage, publicity of information, or the affirmative disclosure and dissemination of information, destroys traditional notions of protection and expectations. At the same time, publicity without privacy protection undermines constitutional values of public safety and fair governance. The paper argues that activity in public needs to have privacy protection framed in terms of ‘public regarding’ and ‘non-public regarding’ acts.