wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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operation of social structure.”20 Although particular individuals may
not be directly injured, power imbalances can affect people’s lives
Privacy: A New Understanding
179
because they shape the social and political atmosphere in which people
live. In some cases, they have direct effects on individuals because they
can result in chilling effects or vulnerability harms. Often, the aggran
dizement of power by institutions does not arise out of malicious aims,
but it nevertheless creates dangers such as drift in purposes and abuse.
Joel Reidenberg apdy notes, “[D]ata privacy is a societal value and a
requisite element of democracy. Society as a whole has an important
stake in the contours of the protection of personal information.”21
In a related manner, the Fourth Amendment’s requirement of judi
cial oversight of government searches does not protect only the specific
individuals being searched; it is a protection of society as a whole
against excessive government power. The Fourth Amendment is en
forced through the exclusionary rule, by which a criminal defendant
can exclude evidence obtained improperly from trial. If we view the
Fourth Amendment as protecting the privacy rights of the defendant,
it is hard to justify why we should protect her privacy at the cost of the
safety of the rest of the community. Instead, if we view the Fourth
Amendment as protecting privacy as a social value, we are enforcing
privacy rights because of the larger value to the community in ensuring
that the police follow appropriate procedures when conducting searches.
Priscilla Regan observes, “A public value of privacy derives not only
from its protection of the individual as an individual but also from its
usefulness as a restraint on the government or on the use of power.”22
The Fourth Amendment rectifies a set of power imbalances; it aims to
provide a structural balance of power between the government and
citizens.
Recognizing and Redressing H arm s
Even when it appears that the law recognizes a problem, the law can
also falter in understanding its nature and effects. In other words, there
is a distinction between recognizing a problem and understanding a
problem. The law sometimes acknowledges the privacy problems in
volved in a given context but fails to effectively redress the harms caused
by the problems. For example, in the U.S. Privacy Act of 1974, Con
gress sought to regulate the collection, processing, and dissemination of
personal information by government agencies.23 On the surface, the act
embodies a pluralistic conception of privacy that recognizes many of
180
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y : A N
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the problems in the taxonomy, such as information collection, pro
cessing, and dissemination. T he act falls short, however, because its en
forcement provisions do not adequately address the harms created by
these problems. In many instances, enforcement of the Privacy Act oc
curs through lawsuits by individuals for damages. Collecting damages,
however, is very difficult.24 For example, in Doe v. Chao, the Depart
ment of Labor improperly disclosed coal-mine workers’ Social Secu
rity numbers. Several sued under the federal Privacy Act, which pro
hibits the disclosure of personal information. One of the plaintiffs,
Buck Doe, explained his injury:
He was “greatly concerned and worried” about the disclosure of
his SSN; that he felt his privacy had been violated in “words he
cannot describe”; that he felt the consequences of the disclosure of
his SSN could be “devastating” for himself and his wife, and that
the disclosure of his SSN had “torn [him] all to pieces.”
But Doe could not prove these damages based on his “own conclusory
allegations that he felt ‘embarrassed,’ ‘degraded,’ or ‘devastated,’ and
suffered a loss of self-esteem.” According to the court, Doe “did not
produce any evidence of tangible consequences stemming from his al
leged angst over the disclosure of his SSN. He claimed no medical or
psychological treatment, no purchase of medications (prescription or
over-the-counter), no impact on his behavior, and no physical conse
quences.”23 Although the Privacy Act provides for liquidated damages
(a minimum amount of damages without regard to a person’s actual
damages), the U.S. Supreme C ourt concluded that Doe could only col
lect liquidated damages once he had proven actual damages.26
Although one of the Privacy Act’s central purposes is to protect
against exclusion, insecurity, and other information-processing prob
lems, it fails because its enforcement structure focuses too much on the
individual and not enough on the harms of vulnerability and power im
balances. These harms often cannot be adequately rectified by re
quiring proof of physical or financial harm. Often, no immediate fraud
or identity theft has resulted from a particular data leak. A concrete in
jury may never emerge, or it could occur years later. T he law frequently
struggles to recognize a harm until an actual misuse of the information
occurs. To be effective, any individual enforcement mechanisms must
Privacy: A New Understanding
181
be structured to address the larger architectural harms. To the extent
that enforcement occurs by way of individual lawsuits, it must involve
true liquidated damages without requiring proof of any specific indi

operation of social structure.”20 Although particular individuals may

not be directly injured, power imbalances can affect people’s lives

Privacy: A New Understanding

179

because they shape the social and political atmosphere in which people

live. In some cases, they have direct effects on individuals because they

can result in chilling effects or vulnerability harms. Often, the aggran

dizement of power by institutions does not arise out of malicious aims,

but it nevertheless creates dangers such as drift in purposes and abuse.

Joel Reidenberg apdy notes, “[D]ata privacy is a societal value and a

requisite element of democracy. Society as a whole has an important

stake in the contours of the protection of personal information.”21

In a related manner, the Fourth Amendment’s requirement of judi

cial oversight of government searches does not protect only the specific

individuals being searched; it is a protection of society as a whole

against excessive government power. The Fourth Amendment is en

forced through the exclusionary rule, by which a criminal defendant

can exclude evidence obtained improperly from trial. If we view the

Fourth Amendment as protecting the privacy rights of the defendant,

it is hard to justify why we should protect her privacy at the cost of the

safety of the rest of the community. Instead, if we view the Fourth

Amendment as protecting privacy as a social value, we are enforcing

privacy rights because of the larger value to the community in ensuring

that the police follow appropriate procedures when conducting searches.

Priscilla Regan observes, “A public value of privacy derives not only

from its protection of the individual as an individual but also from its

usefulness as a restraint on the government or on the use of power.”22

The Fourth Amendment rectifies a set of power imbalances; it aims to

provide a structural balance of power between the government and

citizens.

Recognizing and Redressing H arm s

Even when it appears that the law recognizes a problem, the law can

also falter in understanding its nature and effects. In other words, there

is a distinction between recognizing a problem and understanding a

problem. The law sometimes acknowledges the privacy problems in

volved in a given context but fails to effectively redress the harms caused

by the problems. For example, in the U.S. Privacy Act of 1974, Con

gress sought to regulate the collection, processing, and dissemination of

personal information by government agencies.23 On the surface, the act

embodies a pluralistic conception of privacy that recognizes many of

180

P

r

i v

a

c

y : A N

e w U

n

d

e

r

s

t

a

n

d

i n

g

the problems in the taxonomy, such as information collection, pro

cessing, and dissemination. T he act falls short, however, because its en

forcement provisions do not adequately address the harms created by

these problems. In many instances, enforcement of the Privacy Act oc

curs through lawsuits by individuals for damages. Collecting damages,

however, is very difficult.24 For example, in Doe v. Chao, the Depart

ment of Labor improperly disclosed coal-mine workers’ Social Secu

rity numbers. Several sued under the federal Privacy Act, which pro

hibits the disclosure of personal information. One of the plaintiffs,

Buck Doe, explained his injury:

He was “greatly concerned and worried” about the disclosure of

his SSN; that he felt his privacy had been violated in “words he

cannot describe”; that he felt the consequences of the disclosure of

his SSN could be “devastating” for himself and his wife, and that

the disclosure of his SSN had “torn [him] all to pieces.”

But Doe could not prove these damages based on his “own conclusory

allegations that he felt ‘embarrassed,’ ‘degraded,’ or ‘devastated,’ and

suffered a loss of self-esteem.” According to the court, Doe “did not

produce any evidence of tangible consequences stemming from his al

leged angst over the disclosure of his SSN. He claimed no medical or

psychological treatment, no purchase of medications (prescription or

over-the-counter), no impact on his behavior, and no physical conse

quences.”23 Although the Privacy Act provides for liquidated damages

(a minimum amount of damages without regard to a person’s actual

damages), the U.S. Supreme C ourt concluded that Doe could only col

lect liquidated damages once he had proven actual damages.26

Although one of the Privacy Act’s central purposes is to protect

against exclusion, insecurity, and other information-processing prob

lems, it fails because its enforcement structure focuses too much on the

individual and not enough on the harms of vulnerability and power im

balances. These harms often cannot be adequately rectified by re

quiring proof of physical or financial harm. Often, no immediate fraud

or identity theft has resulted from a particular data leak. A concrete in

jury may never emerge, or it could occur years later. T he law frequently

struggles to recognize a harm until an actual misuse of the information

occurs. To be effective, any individual enforcement mechanisms must

Privacy: A New Understanding

181

be structured to address the larger architectural harms. To the extent

that enforcement occurs by way of individual lawsuits, it must involve

true liquidated damages without requiring proof of any specific indi