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The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy—a right to limit the government's ability to collect and disseminate personal information. This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to promote individual dignity and autonomy, there is a disconnect when courts attempt to translate those theories into workable doctrine. The extant theories are products of Fourth Amendment and decisional privacy law, and bear a more attenuated relationship to informational privacy problems, hindering recognition of the right. This Article reorients and hones the focus of the purported informational privacy right toward what the Due Process Clause suggests as the right's two principal and more concrete values: preventing intimate information from serving as the basis for potential discrimination and creating space for the formation of political thought. By so doing, not only is a more precise theory of informational privacy constructed, but instrumentally (and perhaps most importantly), courts will be more apt to recognize a constitutional informational privacy right thereby better insulating individuals from discrimination or marginalization.

In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers' concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choices at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a changing information architecture brought on by the rise of the internet and digital media that drastically alters how information about candidates is collected and circulated. The second is a shift in who runs for office. As women and minorities—targets of the worst forms of harassment—increasingly throw their hats in the ring, this Article argues that competing democratic values should challenge previous assumptions about candidate privacy. Far from suggesting easy answers, this Article offers a framework for courts to weigh candidate privacy interests in a more nuanced way, drawing on vetting principles for aspirants to other positions of public trust. While there are good reasons candidates should have far less privacy than ordinary citizens, the reflexive denial of candidate privacy must have its limits if we care about nourishing our evolving democracy.

Privacy law scholarship often focuses on domain-specific federal privacy laws and state efforts to broaden them. This Article provides the first comprehensive analysis of privacy regulation at the local level (which it dubs "privacy localism"), using recently enacted privacy laws in Seattle and New York City as principal examples. Further, this Article attributes the rise of privacy localism to a combination of federal and state legislative failures and three emerging urban trends: the role of local police in federal counterterrorism efforts; smart city and open data initiatives; and demands for local police reform in the wake of widely reported abusive police practices. Both Seattle and New York City have enacted or proposed (1) a local surveillance ordinance regulating the purchase and use of surveillance equipment and technology by city departments, including the police, and (2) a law regulating city departments' collection, use, disclosure, and retention of personal data. In adopting these local laws, both cities have sought to fill two significant gaps in federal and state privacy laws: the public surveillance gap, which refers to the weak constitutional and statutory protections against government surveillance in public places, and the fair information practices gap, which refers to the inapplicability of the federal and state privacy laws to government records held by local government agencies. Filling these gaps is a significant accomplishment and one that exhibits all of the values typically associated with federalism such as diversity, participation, experimentation, responsiveness, and accountability. This Article distinguishes federalism and localism and shows why privacy localism should prevail against the threat of federal and—more importantly—state preemption. This Article concludes by suggesting that privacy localism has the potential to help shape emerging privacy norms for an increasingly urban future, inspire more robust regulation at the federal and state levels, and inject more democratic ...

This Article proposes that tax is a fertile field in which privacy scholars should be working. The privacy burdens of taxpayers have gone unnoticed by privacy scholars. To the extent that privacy scholars are concerned about the dignity of individuals and ensuring that they have "freedom from scrutiny" and "breathing-room" for self-development, the threat to dignity, freedom, and breathing-room endured by Rhiannon O'Donnabhain, Lynnette Harris, Katia Popov, Melvin Nickerson, Ramsay and Elizabeth Farah, and other taxpayers deserves scrutiny. To the extent that privacy scholars worry about the peril to a free society, creeping totalitarianism, and undesirable shifts of power that collection of information by government agencies can bring, the IRS's gathering of information should be no less worrisome than that of other agencies, such as the NSA or FBI. This Article also proposes that privacy is a societal value that tax scholars should work to incorporate into their research. While unrecognized until now, privacy values are comparable to the values of efficiency, equity, and administrability that tax scholars have long heralded as the markers of a sound tax system. Tax scholars should measure the negative impact of specific tax provisions on privacy, weigh the impact against any benefits achieved, and propose ways to reduce the impact without undermining the benefits. Tax scholars should also consider ways in which fundamental reforms could better protect privacy without compromising—or perhaps even better, achieving—the central goals of a sound tax system. For instance, a reform increasing the standard deduction and personal exemption amounts while decreasing the number of specialized deductions and credits might mitigate privacy concerns while also reducing administrative costs. Moreover, a more radical change in the tax base itself—perhaps a move from an income to a value-added or other consumption tax could, as a matter of the base's own logic, require minimal personal information while also enhancing tax ...

Anxiety about surveillance and data mining has led many to embrace implausibly expansive and rigid conceptions of privacy. The premises of some current privacy arguments do not fit well with the broader political commitments of those who make them. In particular, liberals seem to have lost touch with the reservations about privacy expressed in the social criticism of some decades ago. They seem unable to imagine that preoccupation with privacy might amount to a "pursuit of loneliness" or how "eyes on the street" might have reassuring connotations. Without denying the importance of the effort to define and secure privacy values, I want to catalogue and push back against some key rhetorical tropes that distort current discussion and practice. One problem is that privacy defenses often imply a degree of pessimism about the state that is inconsistent with the strong general public regulatory and social-welfare role that many defenders favor. Another is a sentimental disposition toward past convention that obscures the potential contributions of new technologies to both order and justice. And a third is a narrow conception of personality that exalts extreme individual control over information at the expense of sharing and sociability.

During the preceding four decades, the "private" lives of politicians have been subjected to an increasing degree of public scrutiny; so much so that it might be argued that those pursuing or occupying elected office – especially senior positions (e.g., Cabinet ministers) – are often denied a degree of privacy commensurate with adequately respecting and protecting human dignity. In this essay I argue that, while politicians should not be expected to forsake all hope of privacy, the voluntary character of, and responsibilities attached to, elected political office, coupled with citizens' democratic right to choose their political representatives freely, renders it ethically legitimate for the "public" and many of the "private" elements of politicians' lives to receive a degree of public scrutiny that greatly exceeds that experienced by their fellow citizens.

In the United States, many low-income citizens are being held to a harsher standard than wealthier citizens — these low-income citizens are being asked to relinquish their privacy in order to obtain the public assistance they need, whereas wealthier individuals are not subjected to similar levels of public scrutiny for government benefits that they claim. Giving up privacy can have devastating effects on individuals' lives — they may suffer various dignitary harms, may experience repressed abilities to express themselves, and may even be coerced into important life decisions by the government. This situation presents a unique problem to the neediest in our society: they can either give up their privacy in order to receive benefits they are otherwise eligible for, or they can retain their private lives and suffer an economic burden in the amount of the foregone benefits. This choice may not seem outrageous to many in the United States, but it presents a serious issue for our society. Under the current system of public benefits administration, we ask a vulnerable segment of our citizenry to surrender significantly more information about themselves to their communities and to the government than we ask of any other segment, and it is not clear that valid justifications for this system exist. Many have researched the effects of various procedural requirements for receiving various forms of public assistance. This Article follows that research and contrasts the economic effects of those requirements on eligible individuals who forego their benefits with the privacy harms created by those requirements for those who submit to them. Government actors must consider this balance to ensure that the burden we put on those receiving public assistance is fair and efficient. By considering that balance differently — through the lens of taxation — this Article hopes to shed light on a disturbing situation and to help frame the discussion for potential reform.

As government and private companies rapidly expand the infrastructure of surveillance from cameras on every street corner to facial recognition for photographs on social media sites, privacy doctrines built on seclusion are at odds with technological advances. This essay addresses a key conceptual problem in U.S. privacy law identified by Justice Sotomayor in United States v. Jones and by Justice Scalia in Kyllo v. United States; namely that technological capabilities undermine the meaning of the third-party doctrine and the Fourth Amendment's 'reasonable expectation of privacy' standard. The essay argues that the conceptual problem derives from the evolution of three stages of development in the public nature of personal information, culminating in the ubiquitous transparency of citizens. This ubiquitous transparency destroys any "reasonable expectation of privacy." The essay then argues that transparency without privacy protection challenges the democratic values of public safety and fair governance. To restore the balance and relocate privacy away from the no longer workable "reasonable expectation" standard, the essay argues for a new normative approach to privacy that would protect observable activity where such activity is not "governance-related," but rather "private-regarding." The essay concludes by showing that this distinction is consistent with the First Amendment and draws on established doctrines in tort law and First Amendment jurisprudence.

In this article we look at the Polish media discourse on privacy. In the analysis, we draw on theoretical approaches that understand privacy as having four dimensions: Relational, participatory, contextual, and technological. Moreover, we seek whether a specific norm of data-related privacy could be defined/redefined within the discourse. Considering the post-communist past that shapes a specific approach to surveillance and the general polarisation of polish media discourse, one would expect the key role of privacy issues in the public sphere. Thus, applying a critical discourse studies analysis, the aim was to capture the character of the so far under-researched privacy in Polish media discourse. We study what types of institutional agents are mentioned as creating privacy policies and what dimensions of privacy they tackle. Moreover, we also try to capture whether the institutional position offers a specific normative understanding of privacy and whether this norm is citizen/user-oriented. The results of the study indicate that: both the media discourse and the normative content of privacy policies are dominated by legal aspects concerned with the issues resulting from EU regulations (i.e., General Data Protection Regulation); privacy policies are institutionally dispersed and monopolised by journalists and experts instead of state officials or politicians; and there is only limited evidence of a discursive frame of a citizen-oriented norm of how to protect data-related privacy.

Technology is changing the world we are living in, but we should be concerned about our privacy for every new technological development. Rapid developments and globalization have brought new challenges towards personal data protection. Technology affects on every aspect of our life. So whenever we navigate in internet, make a phone call or use different technology tools our privacy becomes vulnerable because technological developments have not only positive sides but also negative ones. These activities, effecting directly or indirectly, influence and expose privacy related aspects of the life of persons. Scientific and technological progress, especially when it is related to information processing and communication of personal data cannot stand independent from the right and the standards that regulate the private life. The sector with the greatest impact on the lives of people is the internet and consequently this is a sector that requires a stronger legal regulation. The Protection of personal data is recognized as an autonomous fundamental right in the legally binding EU Charter of Fundamental Rights, but the technology develops and that is what the legislation should do too. This paper will focus on the coverage of the current situation in this domain and will aim at providing answers to some key questions such as: Which are the main challenges resulting from the rapid growth of technology? What should be the ratio privacy - technology? DOI:10.5901/mjss.2013.v4n9p279

As a word, legal concept and institution, privacy is exceptionally challenging. It is easy enough to understand but difficult to define and identify. It is not particularly easy to legislate either. For the legislator, privacy very much resembles Tantalus' fruit: just when it seems to be in reach, it withdraws yet remains temptingly visible.The end result has been an extensive body of legislation in various forms both nationally and internationally.There is more to come, and no end in sight. Privacy is every bit as daunting when considered as a subject to be taught to prospective lawyers and others interested in the law.We are forced to ask where, to whom and how privacy in the legal sense should be taught.As yet privacy does not seem to have a real disciplinary home to call its own in legal research or teaching in any country. Academically, law has thus largely overlooked one of our main fundamental rights – the right to privacy.We have every reason to ask how this is possible and what we can do about it.

A letter report issued by the General Accounting Office with an abstract that begins "Pursuant to a congressional request, GAO provided information on whether agencies were adhering to the Office of Management and Budget's (OMB) memorandum requiring federal agencies to post privacy policies on their Internet Websites, focusing on: (1) whether agencies have clearly labelled and easily accessed privacy policies posted on their principal Web sites; (2) whether agencies' privacy policies posted on their principal Web sites inform visitors about what information an agency collects, why the agency collects it, and how the agency will use the information; (3) how selected agencies have interpreted the requirement to post privacy policies at major entry points; and (4) whether selected agencies have posted privacy policies on Web pages where the agency collects substantial personal information or when applicable, notices that refer to the Privacy Act of 1974."

A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory approach with that of the European Union (E.U.) and possibly minimize international regulatory conflicts about privacy. This essay argues, however, that it would be a mistake for the United States to enact a comprehensive or omnibus federal privacy law for the private sector that preempts sectoral privacy law. In a sectoral approach, a privacy statute regulates only a specific context of information use. An omnibus federal privacy law would be a dubious proposition because of its impact on experimentation in federal and state sectoral laws, and the consequences of ossification in the statute itself. In contrast to its skepticism about a federal omnibus statute, this essay views federal sectoral laws as a promising regulatory instrument. The critical question is the optimal nature of a dual federal-state system for information privacy law, and this essay analyzes three aspects of this topic. First, there are general circumstances under which federal sectoral consolidation of state law can bring benefits. Second, the choice between federal ceilings and floors is far from the only preemptive decision that regulators face. Finally, there are second-best solutions that become important should Congress choose to engage in broad sectoral preemption.

Slides for a presentation on the cartography of the privacy arena.

It has become cliché to observe that new information technologies endanger privacy. Typically, the threat is viewed as coming from Big Brother (the government) or Company Man (the firm). But for a nascent data practice we call "self-surveillance," the threat may actually come from ourselves. Using various existing and emerging technologies, such as GPS-enabled smartphones, we are beginning to measure ourselves in granular detail – how long we sleep, where we drive, what we breathe, what we eat, how we spend our time. And we are storing these data casually, perhaps promiscuously, somewhere in the "cloud," and giving third-parties broad access. This data practice of self-surveillance will decrease information privacy in troubling ways. To counter this trend, we recommend the creation of the Privacy Data Guardian, a new profession that manages Privacy Data Vaults, which are repositories for self-surveillance data. In addition to providing technical specifications of this approach, we outline the specific legal relations, which include a fiduciary relationship, between client and Guardian. In addition, we recommend the creation of an evidentiary privilege, similar to a trade secret privilege, that protects self-surveillance data held by a licensed Guardian. We also answers objections that our solution is implausible or useless. We conclude by pointing out that various legal, technological, and self-regulatory attempts at safeguarding privacy from new digital, interconnected technologies have not been particularly successful. Before self-surveillance becomes a widespread practice, some new innovation is needed. In our view, that innovation is a new "species," the Personal Data Guardian, created through a fusion of law and technology and released into the current information ecosystem.