Ari Waldman, ‘Privacy as Trust: Sharing Personal Information in the Twenty-First Century’

This Article is the first of a series discussing the legal and sociological aspects of information privacy, arguing that private contexts are defined by relationships of trust among individuals. The argument reorients privacy scholarship from an individual right to social relationships of disclosure. This has implications for a wide variety of vexing problems of modern privacy law, from limited disclosures to ‘revenge porn’.

The common everyday understanding is that privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy is his respite from the prying, conformist eyes of the rest of the world and his expectation that the things about himself that he wants to keep private will remain so. These ways of understanding privacy are variations on the same theme: that privacy is a tool of the individual ‘against the world’.

None of them adequately protect personal privacy where sharing personal information with others is a precondition of modern life. This Article argues that in this information disclosure context, privacy is really about trust. Rather than accept the traditional division between public and private, and rather than begin and end the discussion of privacy as an individual right, this Article bridges social science and the law to argue that disclosures in contexts of trust are private. Trusting relationships are determined by the presence of experience, strong overlapping networks, identity sharing, and other indicia derived from the totality of the circumstances. This conceptualization of privacy, and its related ways of defining when invasions of privacy occur, more effectively protects privacy in a modern digital world. The Article argues that law of privacy, therefore, should be used to protect relationships of trust, rather than to protect a collection of individual rights. To this end, this Article proposes a robust tort for breach of confidentiality as one tool to protect privacy in a networked world and illustrates the functionality of this tort through a case study of privacy in previously disclosed information.

Ari Ezra Waldman, Privacy as Trust: Sharing Personal Information in the Twenty-First Century, 69 University of Miami Law Review 559 (2015).

First posted 2015-09-10 12:20:33

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