Jane Yakowitz, The New Intrusion
Comment by: Jon Mills
Workshop draft abstract:
The tort of intrusion upon seclusion offers the best theory to target legitimate privacy harms in the information age. This Article introduces a new taxonomy that organizes privacy law across four key stages of information flow—observation, capture (the creation of a record), dissemination, and use. Popular privacy proposals place hasty, taxing constraints on dissemination and use. Meanwhile, regulation targeting information flow at its source—at the point of observation—is undertheorized and ripe for prudent expansion.
Intrusion imposes liability for offensive observations. The classic examples involve intruders who gain unauthorized access to information inside the home or surreptitiously intercept telephone conversations, but the concept of seclusion is abstract and flexible. Courts have honored expectations of seclusions in public when the intruder’s efforts to observe were too aggressive and exhaustive. They have also recognized expectations of seclusion in files and records outside the plaintiff’s possession. This article proposes a framework for extending the intrusion tort to new technologies by assigning liability to targeted and offensive observations of the data produced by our gadgets.
Intrusion is a theoretically and constitutionally sound form of privacy protection because the interests in seclusion and respite from social participation run orthogonal to free information flow. Seclusion can be invaded without the production of any new information, and conversely, sensitive new information can become available without intrusion. This puts the intrusion tort in stark contrast with the tort of public disclosure, where the alleged harm is a direct consequence of an increase in knowledge. Since tort liability for intrusion regulates conduct (observation) instead of speech (dissemination), it does not prohibit a person from saying what he already knows, and therefore can coexist comfortably with the bulk of First Amendment jurisprudence.