Many discussions of privacy assume that collection and
use of information about people automatically hurts them. This has never
been recognized as a legal injury before, however. No discussion of privacy
is complete if it does not concretely identify what real harms modern uses of information bring.
It is not clear that increased collection of personal
information itself harms consumers, and there are many ways that consumers
can protect themselves from both collection and harm. We must discover
whether Information Age uses of personal information cause any new, distinct
harms to privacy that must be protected against.
The four privacy torts that William Prosser summarized
in 1960 can be committed more quickly and thoroughly thanks to technology.
Yet, in some cases, technology can provide better protection against them.
And consumers already have remedies if any of these torts are committed
against them. Again, it is new harms that we must discover.
Collecting personal information did not originate with
the Internet, and it has never before been deemed to cause a recognizable
harm. Some have argued that the mere knowledge that personal information
is collected injures one’s "personality," but this theory has not taken
hold. Such a right would be impossible to enforce, especially because the
biggest systematic collectors of information are governments. Considering,
also, that parents, neighbors, coworkers, and teachers all constantly collect
information on the people around them, preventing collection of information
would be a massive intrusion into social customs. People may be uncomfortable
imagining what collections of their personal information may reveal, but
that is a different concern, and publicizing such information is already
a common law privacy tort.
Perhaps communicating with a private individual for commercial
purposes, while knowing personal information about them, harms them in
some way. Though this harm has never been recognized before, it would be
consistent with the arguments made by privacy advocates that are premised
on there being something sinister about commercial speech and marketing.
Such advocates need to make the case, if they can, that being marketed
to (in a way not otherwise offensive to common law privacy protections)
is harmful. This is the most likely way that a new harm to consumers can
be created from modern information practices.
The availability of personal information sometimes does
assist a criminal in perpetrating crime. For example, "identity theft"
is the fraudulent use of personal information to assume the identity of
another person. This series of criminal acts has become easier to commit
with the increased availability of information in the modern era. The federal
Drivers Privacy Protection Act was passed after driver’s license information
helped a killer find a woman’s home and murder her there. Driver’s license
information is compiled and revealed by government agencies, and the woman
did not have the practical option of protecting this information from being
revealed.
Crimes that make use of personal information are better
treated as the crimes that they are, rather than as invasions of privacy.
Proposals to limit uses of information in order to prevent crime should
be recognized for what they are: crime control, not privacy protection.
So, while there is no doubt that information may be used in harmful
ways, there have yet to be found harmful uses of information that are not
already addressed by the tort laws or the criminal laws.
Links:
Comments? comments@privacilla.org
(Subject: SearchForHarm)
[updated 8/29/00]
