The Failure of American Privacy Law
Professor David A. Anderson
Americans cherish privacy. We spend a great deal of money and effort to obtain it. In youth we flee our parents' homes for the privacy of a place of our own. We design our houses for privacy. As students we prefer apartments to dormitories, and as hospital patients we demand private rooms instead of wards. In middle age we put our parents in nursing homes to preserve their privacy and ours. We strive to save enough money so we will be able to afford in our old age a care facility where we can have the privacy of our own apartment.
Inquiries that are perfectly proper in other cultures, and not long ago seemed natural in our own, are now unacceptable. If we meet a man and woman who seem to be together, we do not ask if they are married. We do not ask a new acquaintance, 'What is your religion?' or 'Are you a Democrat?' We expect to check into a hotel or motel without being asked whether we are married to the person accompanying us. Teachers are not allowed to announce a student's grade to the class. We are wary of drug testing, random searches, and polygraph testing.
We demand that the law protect privacy, and it does. It limits the questions census-takers may ask, the information governments and creditors are allowed to store in their computers and the uses to which they may put it. It forbids employers from asking for information they would find useful, such as 'Do you plan to have children?'
We also expect the law to protect our privacy from the curiosity of other people, and it does. Invasion of privacy is a tort in almost all states, meaning that a person whose privacy is invaded can sue for damages. The most widely accepted formulation of the tort is stunningly broad: 'One who invades the privacy of another is subject to liability for the resulting harm to the interests of the