The New Intrusion
Bambauer, Jane Yakowitz, Notre Dame Law Review
The tort of intrusion upon seclusion offers the best theory to target legitimate privacy harms in the information age. This Article introduces a new taxonomy that organizes privacy regulations across four key stages of information flow--observation, capture (the creation of a record), dissemination, and use. Privacy scholars typically propose placing constraints on the dissemination and re-use of personal information, and these dominant models are at the heart of President Obama's Consumer Privacy Bill of Rights. But these restrictions conflict with the First Amendment and other important shared values. Instead, observation is the most promising stage for legal intervention.
Intrusion imposes liability for conduct--offensive observations. The tort is theoretically coherent and constitutionally sound because an individual's interests in seclusion co-exist comfortably with society's interests in data dissemination. This puts intrusion in stark contrast with other privacy models, where the alleged harm is a direct consequence of an increase in knowledge. The classic intrusion tort can adapt sensibly to new technologies when it is reduced to two essential elements: (1) an observation, (2) that is offensive. This approach vindicates privacy law's historical roots in torts and offers a path to principled privacy regulation.
Before Ralph Nader became a household name for his expose of the American automobile industry, Unsafe at Any Speed, General Motors caught wind of the project and mounted an ill-fated intimidation campaign. (1) GM's agents interviewed Nader's friends and acquaintances to gather information that might be embarrassing for the activist--"his political, social,... and religious views,... sexual proclivities,... and [odd] personal habits." (2) GM hired people to shadow Nader incessantly. At one point, an agent followed Nader into a bank and got sufficiently close to see the exact denomination of bills Nader received from the teller. (3) GM also arranged for young women to proposition him with the hopes of entrapping him into an affair. (4) Nader sued the car manufacturer. The New York Court of Appeals found the surveillance practices of GM's agents could be intrusive and tortious. (5) In assessing GM's conduct, the court famously opined that "[a] person does not automatically make public everything he does merely by being in a public place." (6)
The tort of intrusion imposes liability on anyone "who intentionally intrudes ... upon the ... seclusion of another ... if the intrusion would be highly offensive to a reasonable person." (7) The interest protected by the tort is the right to respite from observation and judgment so that, when we do participate socially, we can be more engaged and ethical participants. (8) Importantly, liability for intrusion has nothing to do with the content of the information discovered. When GM's spy leaned in to observe the exact denominations of bills that Nader was receiving from the bank teller, it constituted an intrusion regardless of whether Nader received twenty dollars, two thousand dollars, or a kitten. (9) The tort's focus on behavior, as opposed to content, allows intrusion to coexist comfortably with the First Amendment and other core liberal values that safeguard information exchange. The intrusion tort penalizes conduct--offensive observations--not revelations.
Intrusion has great, untapped potential to address privacy harms created by advances in information technology. Though the tort is associated with conduct in real space, its principles apply just as well to operations in the era of Big Data. Suppose GM's agents followed Nader into a large retail store. There, they observed not only Nader's general movement throughout the store, but his specific shopping habits. Suppose they made note of every product Nader browsed, even if he did not put them in his shopping cart. They recorded that he replaced the box of (generically branded) Colossal Crunch with Cap'n Crunch after seeing that the name brand cereal was on sale. …