20 March 2015

Property, Privacy and the Public

'Privacy as Quasi-Property' by Lauren Henry in (forthcoming) Iowa Law Review comments
Courts and commentators struggle to apply privacy law in a way that conforms to the intuitions of many. It is often thought that the reason for this is the absence of an agreed upon conceptual definition of privacy. In fact, the lack of a description of the interest invaded in a privacy matter is the more substantial hurdle. This article, Privacy as Quasi-Property, fills this gap in the literature.
Quasi-property is a relational entitlement to exclude, that is, the right to exclude specific actors from a resource given a specific event, a given type of behavior, or a given relationship between the actors. There is no freestanding right to exclude from a quasi-property interest; the right to exclude must be trigged by behaviors of the plaintiff and defendant. A defendant is identified based on a trigger arising from a relationship, action, or harm to plaintiff. The law communicates that an actor must not interfere with a quasi-property interest with an exclusionary signal that is independent of the resource. Prominent examples of doctrinal areas that employ the quasi-property model are information misappropriation and trade secret law.
I argue that quasi-property provides the essential model for assessing the interest held by a privacy claimant against a defendant, and whether it has been infringed. The quasi-property model can account for the four privacy torts first advanced by William Prosser and adopted as law in the vast majority of states, and liberate them from the ossification that have stunted their development and ability to adapt to modern conditions. What’s more, the approach has implications for developing privacy rules for enforcement by other actors, such as administrative agencies, and even in conceptualizing other areas of privacy law outside of tort law, such as Fourth Amendment jurisprudence.
'The Self, the Stasi, the NSA: Privacy, Knowledge, and Complicity in the Surveillance State' by Robert H. Sloan and Richard Warner comments
We focus on privacy in public. The notion dates back over a century, at least to the work of the German sociologist, Georg Simmel. Simmel observed that people voluntarily limit their knowledge of each other as they interact in a wide variety of social and commercial roles, thereby making certain information private relative to the interaction even if it is otherwise publicly available. Current governmental surveillance in the US (and elsewhere) reduces privacy in public. But to what extent?
The question matters because adequate self-realization requires adequate privacy in public. That in turn depends on informational norms, social norms that govern the collection, use, and distribution of information. Adherence to such norms is constitutive of a variety of relationships in which parties coordinate their use of information. Examples include student/teacher, and journalist/confidential source. Current surveillance undermines privacy in public by undermining norm-enabled coordination. The 1950 to 1990 East German Stasi illustrates the threat to self-realization. The “hidden, but for every citizen tangible omnipresence of the Stasi, damaged the very basic conditions for individual and societal creativity and development: Sense of one’s self, Trust, Spontaneity.” The United States is not East Germany, but it is on the road that leads there. And that raises the question of how far down that road it has traveled.
To support the “on the road” claim and answer the “how far” question, we turn to game-theoretic studies of the Assurance Game (more popularly known as the Stag Hunt). We combine our analysis of that game with a characterization of current governmental surveillance that in terms of five concepts: knowledge, use, merely knowing, complicity, and uncertainty. All five combine to undermine norm-enabled coordination. The Assurance Game shows how use — both legitimate and not legitimate — leads to discoordination. Enough discoordination would lead to a Stasi-like world. But will that happen? A comparison with the Stasi shows cause for concern. The United States possess a degree of knowledge about its citizens that the Stasi could only dream of. Moreover — perhaps — it arguably surpasses the Stasi in complicity, even though Stasi informants “spied on friends, workmates, neighbours and family members. Husbands spied on wives.” The Stasi only clearly exceeded the United States in repressive use. While it is difficult to predict the future of surveillance, we conclude with three probable scenarios. In only one is there an adequate degree of privacy in public.