Private Law Theory

ABSTRACT
It is widely thought that the central problems posed by new personal data mining technologies are privacy related. There is also an emerging consensus that privacy rights lack a unified core. Both conclusions are mistaken and derive from the conflation of privacy losses and violations.

Differentiating these concepts generates a new understanding of privacy. It clarifies the outcome-based criteria that define privacy losses, the path-based criteria that define privacy violations, and the relationship between them.

This analysis also leads to two further insights. First, regarding the coherence of the law, it demonstrates how a unified theory of privacy rights is possible despite significant disagreement about their content. Second, regarding the content of the law, it challenges orthodox views about how privacy rights are violated by the aggregation, unconsented use, and inference of personal data.

While these contested uses of data might be restricted on other grounds, the actual interests at stake may not justify restrictions that are as expansive as those often envisioned. Thus, untangling losses and violations reveals not only the unity of privacy but also its limits.

Skopek, Jeffrey M, Untangling Privacy: Losses Versus Violations (July 1, 2020). Iowa Law Review, volume 105, no 5, 2020.

First posted 2022-02-25 13:00:08