Tuesday, June 16, 2015
Victoria L. Schwartz (Pepperdine University School of Law) has posted Overcoming the Public-Private Divide in Privacy Analogies (Hastings Law Journal, Forthcoming) on SSRN. Here is the abstract:
When a photographer takes unauthorized aerial photographs of a company’s plant, the legal framework under which courts evaluate the case, as well as its likely outcome, depends on whether the photographer was hired by a private actor or the government. If a competitor hired the photographer, the aerial photography would likely constitute improper trade secret misappropriation. If, however, the government hired the photographer, the aerial photography would not violate the Fourth Amendment. This scenario illustrates a public-private divide in which privacy violations by the government are treated separately from privacy violations by the private sector. Despite this divide, some courts have analogized from the Fourth Amendment into the trade secret context, while the Supreme Court has rejected such an analogy in the opposite direction.
A similar but reverse phenomenon occurs in the workplace privacy context.
Neither courts nor scholars have offered any systematic criteria for evaluating when privacy analogies across the public-private divide are appropriate. Rather courts import or reject privacy analogies between the public and private sectors without any meaningful consideration of when such analogies make sense. This Article offers a coherent and consistent normative framework to analyze when privacy analogies are appropriate across the public-private divide. In deciding whether such privacy analogies make sense, courts ought to apply a multi-factored test in which they consider the presence or absence of factors within the privacy-invading actor that could justify the traditional public-private distinction. These factors include the power of coercion, ability to harm identity formulation or the protection of democracy, access to superior technology, and presence of bureaucratic features.