wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

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vidual harm.
Courts sometimes struggle with recognizing a harm in the pro
cessing and dissemination of data by businesses. For example, in U.S.
West, Inc. v. Federal Communications Commission, a communications car
rier challenged privacy regulations for telephone customer informa
tion as a violation of free speech. The regulations required that the
companies first obtain the consent of their customers (before using
their personal information for new purposes beyond those for which
the data were collected. In order for the regulations to survive consti
tutional muster, they had to serve a substantial interest. T he court con
cluded that privacy did not rise to the level of a substantial interest:
[T]he government must show that the dissemination of the infor
mation desired to be kept private would inflict specific and signif
icant harm on individuals, such as undue embarrassment or ridi
cule, intimidation or harassment, or misappropriation of sensitive
personal information for the purposes of assuming another’s
identity.
The court further stated that a “general level of discomfort from
knowing that people can readily access information about us does not
necessarily rise to the level of a substantial state interest. . . for it is not
based on an identified harm.”27
T he U.S. West court focused too heavily on harm to particular indi
viduals and did not see the larger social harms. T he court was fixated
on finding a physical, financial, reputational, or psychological harm. It
did not see the power imbalance caused by the aggregation and sec
ondary uses of personal information by the telephone company. Aggre
gation, secondary use, and many other information-processing prob
lems affect the way that power is allocated between individuals and
large corporations. These problems affect the structure of our society
as a whole. T he problems are different from the disclosure of a secret,
the exposure of a nude body, or the pervasive surveillance of an indi
vidual. They are problems that go to the heart of what type of society
we are constructing as we move headlong into the information age.
182
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Information can be used to make important decisions about people’s
lives; it is often subjected to a bureaucratic process that lacks discipline
and control; and the individual has scant knowledge of how the infor
mation is processed and used.
The law frequently struggles with recognizing harms that do not re
sult in embarrassment, humiliation, or physical or psychological in
jury.28 For example, after the September 11 attacks, several airlines
gave their passenger records to federal agencies in direct violation of
their privacy policies. A group of passengers sued Northwest Airlines
for disclosing their personal information. One of their claims was that
Northwest Airlines breached its contract with the passengers. In Dyer
v. Northwest Airlines Corp., the court rejected the contract claim in part
because the passengers “failed to allege any contractual damages
arising out of the alleged breach.”29 A similar difficulty in recognizing
harm is illustrated by Smith v. Chase Manhattan Bank. A group of
people sued Chase Manhattan Bank for selling their personal informa
tion to third parties. The sale of the information violated Chase’s pri
vacy policy, which stated that the information would remain confiden
tial. The court held that even presuming these allegations were true,
the plaintiffs could not prove any actual injury: “[Tjhe ‘harm’ at the
heart of this purported class action, is that class members were merely
offered products and services which they were free to decline. This
does not qualify as actual harm. The complaint does not allege any
single instance where a named plaintiff or any class member suffered
any actual harm due to the receipt of an unwanted telephone solicita
tion or a piece of junk mail.”30
These cases illustrate a difficulty in the legal system in addressing
privacy problems. The actions of Northwest Airlines and Chase Man
hattan Bank constituted breaches of confidentiality. The harm involved
in a breach of confidentiality consists of more than emotional distress.
The harm is one that affects social structure because it involves the ex
tent to which promises of confidentiality can be trusted. If companies
can promise confidentiality but suffer no consequences in violating
their word, then promises of confidentiality become unreliable, and
trust between companies and their customers gradually erodes. The ef
fects often extend beyond the specific companies that break their
promises; unpunished breaches of confidentiality can erode trust in
promises of confidentiality more generally. Countless transactions
Privacy: A New Understanding
183
depend upon the viability of promises of confidentiality, and ensuring
that these promises remain dependable has a social value.
Secondary use is also implicated in Dyer because the data collected
for one purpose was then given to the government (for an entirely
different purpose. T h e secondary-use problem did not cause financial
injuries or even psychological ones. Instead, the harm was one of
power imbalance. Data was disseminated in a way that ignored airline
passengers’ interests in the data despite promises made in the privacy
policy. Even if the passengers were unaware of the policy, there is a so
cial value in ensuring that companies adhere to established limits on
the way they use personal information. Otherwise, any stated limits be
come meaningless, and companies have discretion to use data with few

vidual harm.

Courts sometimes struggle with recognizing a harm in the pro

cessing and dissemination of data by businesses. For example, in U.S.

West, Inc. v. Federal Communications Commission, a communications car

rier challenged privacy regulations for telephone customer informa

tion as a violation of free speech. The regulations required that the

companies first obtain the consent of their customers (before using

their personal information for new purposes beyond those for which

the data were collected. In order for the regulations to survive consti

tutional muster, they had to serve a substantial interest. T he court con

cluded that privacy did not rise to the level of a substantial interest:

[T]he government must show that the dissemination of the infor

mation desired to be kept private would inflict specific and signif

icant harm on individuals, such as undue embarrassment or ridi

cule, intimidation or harassment, or misappropriation of sensitive

personal information for the purposes of assuming another’s

identity.

The court further stated that a “general level of discomfort from

knowing that people can readily access information about us does not

necessarily rise to the level of a substantial state interest. . . for it is not

based on an identified harm.”27

T he U.S. West court focused too heavily on harm to particular indi

viduals and did not see the larger social harms. T he court was fixated

on finding a physical, financial, reputational, or psychological harm. It

did not see the power imbalance caused by the aggregation and sec

ondary uses of personal information by the telephone company. Aggre

gation, secondary use, and many other information-processing prob

lems affect the way that power is allocated between individuals and

large corporations. These problems affect the structure of our society

as a whole. T he problems are different from the disclosure of a secret,

the exposure of a nude body, or the pervasive surveillance of an indi

vidual. They are problems that go to the heart of what type of society

we are constructing as we move headlong into the information age.

182

P

r

i v a

c y : A N

e w U

n

d

e r

s t

a

n

d

i n

g

Information can be used to make important decisions about people’s

lives; it is often subjected to a bureaucratic process that lacks discipline

and control; and the individual has scant knowledge of how the infor

mation is processed and used.

The law frequently struggles with recognizing harms that do not re

sult in embarrassment, humiliation, or physical or psychological in

jury.28 For example, after the September 11 attacks, several airlines

gave their passenger records to federal agencies in direct violation of

their privacy policies. A group of passengers sued Northwest Airlines

for disclosing their personal information. One of their claims was that

Northwest Airlines breached its contract with the passengers. In Dyer

v. Northwest Airlines Corp., the court rejected the contract claim in part

because the passengers “failed to allege any contractual damages

arising out of the alleged breach.”29 A similar difficulty in recognizing

harm is illustrated by Smith v. Chase Manhattan Bank. A group of

people sued Chase Manhattan Bank for selling their personal informa

tion to third parties. The sale of the information violated Chase’s pri

vacy policy, which stated that the information would remain confiden

tial. The court held that even presuming these allegations were true,

the plaintiffs could not prove any actual injury: “[Tjhe ‘harm’ at the

heart of this purported class action, is that class members were merely

offered products and services which they were free to decline. This

does not qualify as actual harm. The complaint does not allege any

single instance where a named plaintiff or any class member suffered

any actual harm due to the receipt of an unwanted telephone solicita

tion or a piece of junk mail.”30

These cases illustrate a difficulty in the legal system in addressing

privacy problems. The actions of Northwest Airlines and Chase Man

hattan Bank constituted breaches of confidentiality. The harm involved

in a breach of confidentiality consists of more than emotional distress.

The harm is one that affects social structure because it involves the ex

tent to which promises of confidentiality can be trusted. If companies

can promise confidentiality but suffer no consequences in violating

their word, then promises of confidentiality become unreliable, and

trust between companies and their customers gradually erodes. The ef

fects often extend beyond the specific companies that break their

promises; unpunished breaches of confidentiality can erode trust in

promises of confidentiality more generally. Countless transactions

Privacy: A New Understanding

183

depend upon the viability of promises of confidentiality, and ensuring

that these promises remain dependable has a social value.

Secondary use is also implicated in Dyer because the data collected

for one purpose was then given to the government (for an entirely

different purpose. T h e secondary-use problem did not cause financial

injuries or even psychological ones. Instead, the harm was one of

power imbalance. Data was disseminated in a way that ignored airline

passengers’ interests in the data despite promises made in the privacy

policy. Even if the passengers were unaware of the policy, there is a so

cial value in ensuring that companies adhere to established limits on

the way they use personal information. Otherwise, any stated limits be

come meaningless, and companies have discretion to use data with few