March 12, 2007

posted by Daniel J. Solove

Hasn't Rochelle Gurstein already discussed this very point in her excellent "Repeal of Reticence"?

Gurstein's book (click here for a description of the book) is primarily a discussion of public discourse, free speech, sex, and prudery. Our article is about conceptions of privacy and the development of the law of privacy and confidentiality. She does not cover the same territory.

You obviously haven't read the book, which is a little bit surprising. It contains a very thorough and lengthy anthropology of "privacy" borrowing primarily from Hannah Arendt's The Human Condition. Gurstein makes a compelling argument that "privacy" has been distorted by it's modern advocates (Brandeis & Co.) to favor a hyper kind of "exposure"--the very opposite of privacy.

Privacy Scholar -- you obviously haven't read our paper, as it has little do with anything you say above.

If conceptions of privacy and the development of the law of privacy and confidentiality have nothing to do with your paper, then you are correct.

Privacy Scholar -- Well, if the broad topic is conceptions of privacy, then hundreds of works have been written on this topic. There are countless critiques of Warren & Brandeis. There are countless historical accounts of the development of privacy. Our paper is making a specific argument about the history and development of two bodies of law -- privacy and confidentiality and America and England. It has nothing to do with Arendt; it is not purporting to be a general anthropology of privacy; it is not about arguing that Warren and Brandeis distorted the law to favor a hyper kind of exposure. If you read our paper, you'd actually understand our argument and what we're covering and what we're not. Unfortunately, it seems as though instead of trying to have a productive conversation, you're merely trying to agitate. Goodbye.

I thought your paper was fascinating, Dan, and am grateful that it's available online in full-text.

As a non-lawyer privacy advocate, I'm just beginning to mull over the implications of where we go from here. Apart from more lawyers filing suit on the basis of confidentiality as opposed to privacy, can you enlighten me more on what implications you see for what I would have called "privacy legislation?"

Suppose we were to say that it doesn't matter whether you communicate your details to a physician, an insurance company, an employer, or a business, etc. -- that all of those relationships (and we would expand the list) will now carry with them an expectation that personal information transmitted is to be considered obtained in confidence and that there would be an individual cause of action in the event of a breach, even if no financial harm accrued. I can just imagine how corporate America would react to that...

Maybe we can ask England to take us back so that we can get a "do-over?" :)

Dissent,

Interestingly, the US and English law are converging. Breach of confidentiality is now a recognized in most jurisdictions. In the past 30 years, it has really grown. It is still not quite as broad and robust as the English version, but it is heading in that direction. One of the main problems is that the tort often doesn't seem to be plead when it seemingly is applicable.

On the English side, the breach of confidence tort has gradually expanded to encompass more and more territory that would ordinarily be covered by the Warren and Brandeis torts. The HRA has furthered the convergence, pushing England to enlarge and loosen the tort even more.

There are some fascinating normative issues about just how far confidentiality protections should extend. Neil Richards and I are working on exploring these issues in a subsequent work.

I thought that this was a terrific article - I trained in English and Australian law and practise in the US, and I have always been curious about the absence of a US law on breach of confidence. This explains it very well. What got me thinking about it again recently is the problems that I have been having stopping our employees from revealing confidential information to Wall Street analysts. I am the GC of a public company. Analysts frequently call our employees in an attempt to get information from them that the analysts know is confidential, and that they can then publish. The question is whether the analysts violate a law when they extract this information and then publish it. The answer appears to be no under US law, but maybe even under English law as it is not clear that we suffer a detriment when the information is published. Anyway - thank you for your excellent analysis.