wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

text stringlengths 0 118
to the exclusion of others or lacks the tools to address certain harms.
The theory of privacy I have developed aims to improve our ability to
recognize and comprehend the harms created by privacy problems.
Individual and Societal Harms
In the taxonomy, I identified sixteen different categories of problems.
Each is problematic for a number of reasons. One of the difficulties the
law experiences in grappling with privacy issues is understanding the
nature of privacy problems. In particular, the law struggles with com
prehending how and why privacy problems cause injury. Throughout
the taxonomy, I have discussed a range of ways .that the individual and
society are harmed by privacy problems.
Physical Injuries. Certain kinds of harm, such as physical injuries, are
very easy to articulate and understand. The law has long been able to
comprehend physical pain and impairment, and therefore, the law has
Privacy: A New Understanding
been able to provide adequate remedies to redress such injuries. In
most cases, however, privacy problems do not cause physical injuries.
Financial Losses and Property Harms. In some cases, privacy problems
result in financial losses or property harms. Insecurity, for example, can
lead to fraud or identity theft. Some intrusions can involve trespass
onto property or interference with the enjoyment of one’s property.
T he law is generally quite adept at rectifying financial losses and pro
tecting property rights.
Reputational Haiyns. In a number of instances, privacy problems re
sult in reputational injuries. President John Adams once asserted that
the “man . . . without attachment to reputation, or honor, is undone.”1
Reputational harms impair a person’s ability to maintain “personal es
teem in the eyes of others” and can taint a person’s image in the com
munity. They can result in “social rebuffs” or lost business or employ
ment.2 T he law has long recognized reputational injuries because it has
protected against defamation since ancient Roman times. Moreover,
the law has understood reputational harms as distinct from physical
and property injuries.3
Emotional and Psychological Harms. In many instances, privacy prob
lems do not create physical, financial, or reputational harm. Rather,
they result in feelings of emotional distress, humiliation, and outrage.
Some might contend that certain forms of emotional harm created by
privacy problems are mere anxieties and that they are too tenuous and
subjective to be afforded protection. But one British privacy expert
aptly observed, “Privacy itself is in one sense irrational: it is about
people’s feelings. But feelings are there, they are facts. And if people’s
anxieties aren’t relieved, they tend to find outlets which are likely to be
painful.”4
American law has slowly grown to comprehend psychological harms.
For a long time, tort law recognized only tangible harms. W hen Samuel
W arren and Louis Brandeis wrote their 1890 article on privacy, they ac
knowledged that the psychological nature of privacy harms would
present a challenge for the law. “[T)n very early times,” they argued, “the
law gave a remedy only for physical interference with life and property.”
They noted, however, that the law developed to recognize nonphysical
injuries: “From the action of battery grew that of assault. Much later
there came a qualified protection of the individual against offensive
noises and odors, against dust and smoke, and excessive vibration. The
175
176
P
r
i v
a
c
y : A N
e w U
n
d
e
r
s
t
a
n
d
i n
g
law of nuisance was developed.” In addition to physical property, they
observed, the law also recognized intellectual property7. W arren and
Brandeis were attempting to justify why the law should also recognize
the nonphysical harms of privacy, which consisted of an “injury to the
feelings.”3
Concerned that privacy harms m ight strike some as too ethereal,
W arren and Brandeis aimed to demonstrate that they were genuine
harms that deserved a remedy. Privacy harms, they wrote, can subject
people to “mental pain and distress far greater than could be inflicted
by mere bodily injury.”6 Today, the privacy torts they recommended
are recognized in most jurisdictions. T he development of the privacy
torts is mirrored by the increasing recognition of psychological harms
in American law. Until the twentieth century, courts were reluctant to
recognize psychological harms in part because of “fear of imaginary in
juries and fictitious suits” and “the difficulty of monetarily valuing
emotional harm.”7 But in the twentieth century, American law signifi
cantly expanded its recognition of psychological harms.8 A tort to re
dress intentional infliction of emotional distress arose, and the tort cur
rently provides a remedy when one “by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress.”9
A tort protecting against negligent infliction of emotional distress also
grew and developed throughout the past century.
Relationship Haims. Several of the problems in the taxonomy involve
damage to relationships. Breach o f confidentiality, for example, thwarts
expectations of trust within relationships. Information gathering can
also interfere with relationships by making people less likely to com
municate or associate with each other. Legal scholar Nancy Levit ob

to the exclusion of others or lacks the tools to address certain harms.

The theory of privacy I have developed aims to improve our ability to

recognize and comprehend the harms created by privacy problems.

Individual and Societal Harms

In the taxonomy, I identified sixteen different categories of problems.

Each is problematic for a number of reasons. One of the difficulties the

law experiences in grappling with privacy issues is understanding the

nature of privacy problems. In particular, the law struggles with com

prehending how and why privacy problems cause injury. Throughout

the taxonomy, I have discussed a range of ways .that the individual and

society are harmed by privacy problems.

Physical Injuries. Certain kinds of harm, such as physical injuries, are

very easy to articulate and understand. The law has long been able to

comprehend physical pain and impairment, and therefore, the law has

Privacy: A New Understanding

been able to provide adequate remedies to redress such injuries. In

most cases, however, privacy problems do not cause physical injuries.

Financial Losses and Property Harms. In some cases, privacy problems

result in financial losses or property harms. Insecurity, for example, can

lead to fraud or identity theft. Some intrusions can involve trespass

onto property or interference with the enjoyment of one’s property.

T he law is generally quite adept at rectifying financial losses and pro

tecting property rights.

Reputational Haiyns. In a number of instances, privacy problems re

sult in reputational injuries. President John Adams once asserted that

the “man . . . without attachment to reputation, or honor, is undone.”1

Reputational harms impair a person’s ability to maintain “personal es

teem in the eyes of others” and can taint a person’s image in the com

munity. They can result in “social rebuffs” or lost business or employ

ment.2 T he law has long recognized reputational injuries because it has

protected against defamation since ancient Roman times. Moreover,

the law has understood reputational harms as distinct from physical

and property injuries.3

Emotional and Psychological Harms. In many instances, privacy prob

lems do not create physical, financial, or reputational harm. Rather,

they result in feelings of emotional distress, humiliation, and outrage.

Some might contend that certain forms of emotional harm created by

privacy problems are mere anxieties and that they are too tenuous and

subjective to be afforded protection. But one British privacy expert

aptly observed, “Privacy itself is in one sense irrational: it is about

people’s feelings. But feelings are there, they are facts. And if people’s

anxieties aren’t relieved, they tend to find outlets which are likely to be

painful.”4

American law has slowly grown to comprehend psychological harms.

For a long time, tort law recognized only tangible harms. W hen Samuel

W arren and Louis Brandeis wrote their 1890 article on privacy, they ac

knowledged that the psychological nature of privacy harms would

present a challenge for the law. “[T)n very early times,” they argued, “the

law gave a remedy only for physical interference with life and property.”

They noted, however, that the law developed to recognize nonphysical

injuries: “From the action of battery grew that of assault. Much later

there came a qualified protection of the individual against offensive

noises and odors, against dust and smoke, and excessive vibration. The

175

176

P

r

i v

a

c

y : A N

e w U

n

d

e

r

s

t

a

n

d

i n

g

law of nuisance was developed.” In addition to physical property, they

observed, the law also recognized intellectual property7. W arren and

Brandeis were attempting to justify why the law should also recognize

the nonphysical harms of privacy, which consisted of an “injury to the

feelings.”3

Concerned that privacy harms m ight strike some as too ethereal,

W arren and Brandeis aimed to demonstrate that they were genuine

harms that deserved a remedy. Privacy harms, they wrote, can subject

people to “mental pain and distress far greater than could be inflicted

by mere bodily injury.”6 Today, the privacy torts they recommended

are recognized in most jurisdictions. T he development of the privacy

torts is mirrored by the increasing recognition of psychological harms

in American law. Until the twentieth century, courts were reluctant to

recognize psychological harms in part because of “fear of imaginary in

juries and fictitious suits” and “the difficulty of monetarily valuing

emotional harm.”7 But in the twentieth century, American law signifi

cantly expanded its recognition of psychological harms.8 A tort to re

dress intentional infliction of emotional distress arose, and the tort cur

rently provides a remedy when one “by extreme and outrageous

conduct intentionally or recklessly causes severe emotional distress.”9

A tort protecting against negligent infliction of emotional distress also

grew and developed throughout the past century.

Relationship Haims. Several of the problems in the taxonomy involve

damage to relationships. Breach o f confidentiality, for example, thwarts

expectations of trust within relationships. Information gathering can

also interfere with relationships by making people less likely to com

municate or associate with each other. Legal scholar Nancy Levit ob