Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 proposed regulation. For all the handwringing in the United States over encroachment by anti-libertarian EU regulation, a new American privacy is already on the rise.Peltz-Steele comments that -
Thinking about privacy is in vogue now in academic circles around the world. Unexceptionally, U.S. scholars and advocates have been eager to systematize diffuse musings and reconstruct privacy as rational and sturdy scaffolding for law and regulation. Exceptionally, U.S. policymakers must fit this reconstructed privacy into an existing superstructure of civil and economic liberties. That superstructure has been molded and in places made rigid by the same social developments that shaped U.S. constitutional law in the twentieth century. The problem is more one of legal architecture than of public will, and U.S. researchers such as Helen Nissenbaum and Daniel Solove are laying the groundwork to tackle the project.
Amplifying qualms over surveillance is the fear of secondary use (and tertiary use, etc.), that is, the use of information for purposes unrelated to its initial harvesting. A user might not object to Google’s use of location mapping to enhance search results for a “florist.” But the user might be surprised and uncomfortable when an advertising bot a week later proposes a dating service upon the perceptive gamble that the twenty-year-old who sought a florist in August would soon be in the market for a new romantic partner. The situation is not much improved by knowing that the aforementioned intimate details are part of the same data profile. Google itself is not in the data brokering business at present, but surveillance and secondary use may result in painful and invasive privacy violations with real social and financial consequences when intimate personal profiles are sold wholesale for unrestricted downstream applications—say, to a potential employer or insurer. Professor Nissenbaum posited a more elaborate theory of “contextual integrity” that examines the context in which privacy is implicated relative to the norms that animate the information use. Her complex and thoughtful taxonomy defies easy summary. To oversimplify nevertheless, she outlined four constructs that define context: the role of the actor in context, such as journalist; the activity in context, such as news reporting; the social norms that govern in the context, such as the use of quotation marks to indicate a subject’s own words; and the values that operate in the context, such as objectivity. Nissenbaum further outlined four parameters of informational norms: context, such as a newspaper’s front page; actors, that is, the identity of the information senders, the receiver, and the data subject; attributes of the information, such as the physical appearance of a data subject; and most importantly, transmission principles, including customary and articulated constraints on information transmission, such as a reporter’s promise of non-attribution.
The analytical trigger in the Nissenbaum approach is a change in the context of information use, as determined by a change in the constructs that define context. A change—say the journalist decides to use a deep-background interview with a corporate whistleblower to put words in the mouth of a fictional character in a screenplay—requires that the new use be tested for consistency with the original parameters of informational norms. The deep-background agreement, a transmission principle in the initial disclosure of information, contemplated no use of the data subject’s words, regardless of the speaker. For that and various other reasons, contextual integrity is compromised. Lawmakers may choose to define an invasion of privacy according to such a compromise of contextual integrity.
Solove’s and Nissenbaum’s creative approaches point to similar results because both are merely tools to articulate existing value systems. A public library’s database of patron checkouts furthers free intellectual inquiry and efficient management of a shared resource. Thus transfer of personal information for national security investigations (surveillance), or sale of data for commercial profiling (secondary use), violates privacy rights, whether framed as an aversion of injurious consequence or as a compromise of contextual integrity. Within any one cultural tradition, be it American, French, or another, the proper employment of each approach aids in the detection of a violation of social norms. The violation then may or may not be used to demarcate a violation of law or civil rights.
Crucially, Solove and Nissenbaum both reject what Solove termed “the secrecy paradigm” in favor of a contextual approach. This divergence from convention exemplifies the resemblance of these approaches to those of the DPD and proposed regulation in the EU. The secrecy paradigm, which is a controlling norm in trade secret law, posits that only secrets are legally protectable; information once disclosed is fair game in the public sphere. The DPD similarly rejected the deceptively simple dichotomy of the secrecy paradigm by persisting in the regulation of data use after a subject’s voluntary disclosure. The context of initial disclosure and the ongoing contexts of information use, including downstream injury, are defining features of both Solove’s and Nissenbaum’s analyses. Just as the DPD newly emphasized disclosure and consent for information practices when persons remain identifiable, Nissenbaum posited that factors such as notice, consent, and redaction may serve to maintain contextual integrity. In toughening the requirement of explicit consent and allowing a sort of consent revocation through the device of the right to be forgotten, the proposed regulation is only further consistent with the concepts of harm-aversion and contextual integrity.
Solove acknowledged that an approach to privacy predicated on extant values might require that the Supreme Court reconsider its commitment to the secrecy paradigm —which it might. In present jurisprudence under the U.S. Fourth Amendment, the font of constitutional privacy, the government can dip deeply into personal information held by third parties, such as banks and telephone companies, because the data are regarded as already disclosed. The concept carries over into the civil context where, for example, the secrecy paradigm is expressed through the tortious invasion of privacy requirement that information have been guarded as secret (like in trade secret law). Voluntary disclosure furthermore may manifest in tort through a defense of consent (to intentional torts) or comparative fault (to negligence torts). But in a recent case in which the Court, on narrow grounds, reproved the covert installation of a GPS tracking device, Justice Sotomayor hinted that a reconsideration of the dichotomy might be in the cards. The decision in general confirmed the Court’s willingness to adapt the Fourth Amendment to new technologies, and GPS tracking is plainly “surveillance” in Solove’s terms. Writing in concurrence, Justice Sotomayor acknowledged that GPS tracking can accumulate “a wealth of detail about [a subject’s] familial, political, professional, religious, and sexual associations,” and that such power is “susceptible to abuse” — which is to say, compromised contextual integrity may result in injury. She concluded: “[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”