'A Prolegomenon to Any Future Restatement of Privacy' by Ronald J. Krotoszynski Jr in (2014) 79(2)
Brooklyn Law Review is
described as
my contribution to the "Restatement of..." symposium, jointly sponsored by the Brooklyn Law School and the American Law Institute (ALI). Since the 1950s, the ALI has been significantly engaged with the project of defining and protecting important privacy interests. However, the ALI's involvement has occurred incident to broader law reform projects largely unrelated to privacy as such. For example, the ALI’s work to secure reproductive rights and sexual autonomy arose in the context of revisions of the Model Penal Code – rather than as part of a comprehensive effort to restate privacy law as such. To date, the ALI’s engagement with privacy has occurred in this fashion; privacy receives coverage incident to Restatements in other substantive areas of law. The ALI should consider whether this piecemeal approach to privacy law represents the best approach. An alternative approach would be to undertake a comprehensive and sustained effort to restate privacy law as a distinct field. Significant benefits could be associated with a more systematic and sustained treatment of privacy as such. On the other hand, a privacy-specific approach would present serious difficulties, beginning with the problem of ascertaining what rights and interests properly fall within the rubric of “privacy,” the public/private distinction and its important impact on privacy rights, and the thorny conflicts that inevitably arise between securing privacy and other important legal interests (such as freedom of speech and the press). This Essay posits that it would be quite difficult – perhaps even impossible – to address these issues successfully. I suggest that utilizing a comparative law analysis to understanding and defining privacy could provide some necessary, indeed essential, baselines that would help to facilitate the creation of a comprehensive Restatement of Privacy Law.
Krotoszynski comments
Simply put, a privacy regime limited to the United States will
not be sufficient to prevent or deter the collection and
dissemination of personal data in the wider world.
To facilitate the successful completion of a Restatement of
Privacy, the ALI must effectively address two major problems.
First, the concept of privacy would need to be defined with
greater precision. At present, privacy lacks clear contours and
meaning. As Professor James Q. Whitman has observed,
“[H]onest advocates of privacy protections are forced to admit
that the concept of privacy is embarrassingly difficult to
define.” We would have to agree on the discrete interests that
fall under the rubric of privacy before we could seek to restate
the field. Second, and to a degree not present in most other
areas of the law, successfully securing privacy interests would
require transnational cooperation. Restating privacy law, at
least in the context of data protection and the privacy torts,
cannot be solely a domestic affair.
I do not suggest that it would be impossible to create a
Restatement of privacy; I do believe that such a project would be very difficult. ...
A good way to begin working toward a Restatement of
privacy would be for the ALI to constitute a transnational
working group, including legal scholars from multiple
jurisdictions, that could undertake an empirical project of
identifying and classifying privacy interests within specific
domestic legal systems. In other words, before we attempt to say
what privacy should or could be, it would make sense to first
understand what privacy is from a more global perspective.
Rather than making bald normative claims about
privacy, I would argue that a better approach would first seek
to understand the ways in which the law already succeeds and
fails in securing interests that fall within the ambit of privacy
(or its German first cousin, dignity). At least initially, we
should undertake an effort to understand privacy from the
bottom up, rather than the top down. Such an approach would
also help to facilitate forging a global legal consensus on how
best to address privacy interests.
In some important respects, pinpointing discrete
subjects related to privacy interests and addressing them
incident to larger and broader restatement projects might
constitute the best approach to restating the law of privacy.
Rather than attempt to address the definitional and operational
problems, one could simply seek to avoid them by locating
privacy rules deeply within other domestic law subjects. Under
this approach, the ALI should simply continue to do what it
already has been doing—addressing privacy interests incident
to Restatements of other, more general, areas of law.
Nevertheless, we should pursue a bigger, bolder, and more
unified approach to the question of privacy law. To the extent that
law reform projects seek to bring order to areas of law that seem
to lack focus, definition, and clarity, privacy law would appear to
be an ideal candidate for restatement. The fact remains that
designing and implementing such a project would be difficult.
A comparative and empirical approach would undoubtedly
shed light on the meaning and scope of privacy; both points of
tangent and points of divergence would emerge from such an
undertaking. To be clear, I am not suggesting that the United
States should simply fall into lockstep behind other nations with
respect to privacy law—whether the question at issue relates to
search and seizure law, data protection, or reproductive rights. I
do, however, think that careful consideration of how other
democratic societies have addressed common problems might
shed important, and non-obvious, light on how best to address
these issues, both in the United States and more globally.
At its best, of course, this is precisely what the ALI’s
restatement projects attempt to do: synthesize legal
understanding, not merely as part of a descriptive enterprise, but
instead as part of an effort to improve and advance the
underlying values that the law seeks to protect. A Restatement of
privacy would be particularly difficult to accomplish, but it would
also be particularly useful in advancing and improving the state
of legal knowledge in this important field of law.
