Privacy In Public

BY JOEL R. REIDENBERG, 69 U. Miami L. Rev. 141 (2014).

Introduction: Data gathering drones at 17,500 feet, cell phone-based GPS trackers, wide distribution of facial recognition software, always-connected Google Glass, and social network tools all demonstrate extraordinary technical capabilities and collectively reflect that wide-scale deployment of information technology creates a very transparent world. In this technologically mediated world, privacy law and society are in a state of confusion about the appropriate treatment of publicly available personal information. More than fifteen years ago, Helen Nissenbaum wrote of ‘privacy in public’ and argued “an adequate account of privacy should neither neglect the nonintimate realm nor explicitly exclude it from consideration.” Her critique of the binary distinction between the public and private realms is all the more relevant today in the face of now ubiquitous surveillance and identifying technologies.

The transparency of personal information that is enabled by sophisticated online technologies undermines the meaning and value of longstanding American constitutional doctrines for privacy. In particular, the Fourth Amendment’s “reasonable expectation of privacy” standard and corresponding third-party doctrine seem anachronistic to serve their purpose of distinguishing the borders of privacy protection.

This essay looks at the state of confusion over privacy in public. In a world of 24/7 data tracking, warehousing, and mining, technology has transformed obscurity, accessibility, and transparency of personal information in ways that subvert the utility of the “reasonable expectation of privacy” constitutional standard. This essay will first map out the key constitutional doctrines that drive privacy law in the United States and stages of development, which fundamentally undermines the concept of a “reasonable expectation of privacy.” Information that was once private through obscurity now becomes technologically accessible. Information that was once merely accessible now becomes transparent and receives wide publicity. These parameter changes no longer fit within traditional court jurisprudence on privacy. The essay then argues that constitutional democracy depends on spheres of privacy in public to preserve public safety and fair governance. To create those spheres of privacy in public, the essay looks to a possible new demarcation line and proposes that privacy protection be framed in terms of ‘governance-related’ and ‘nongovernance-related’ acts….Full Article.

Recommended Citation: Joel Reidenberg, Privacy in Public, 69 U. Miami L. Rev. 141 (2014).

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