Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, April 24, 2008

Omniveillance: The Case For a New Tort

Josh Blackman, George Mason School of Law, has published "Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort For Recording and Disseminating an Individual's Identity Over the Internet." Here is the abstract.

Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends in technology, and the path of future Internet developments. This Article proposes the right to your digital identity, a tort to balance privacy rights with free speech, and provide a remedy for victims of omniveillance.

This tort emerged from existing privacy torts, borrowing from criminal law, criminal procedure, and paparazzi and voyeurism statutes, and develops a workable framework to remedy victims of omniveillance. The tort has four factors that are balanced to create a workable equilibrium between privacy and free speech. The first element modifies the tort of intrusion upon seclusion and adopts a reasonable expectation of privacy standard. The second element serves as a reflection on society's changing perceptions of offensiveness, lowering the standard from "highly offensive" to "offensive," mirroring contemporary sensibilities. The third element of the tort focuses on the new, more pervasive methods of electronic data dissemination over social networks and viral Internet distributions, and accords greater liability to larger and more indiscriminate distribution. The fourth element weighs the newsworthiness exception from the tort of public disclosure of private facts against the level of intrusion into an individual's privacy, attempting to strike a fair balance so that privacy has a chance to outweigh free speech when applied in our courts. Enforced as a common law tort, where each state can define the contours of the tort to meet their citizen's specific needs, the right to your digital identity is a viable remedy for victims of omniveillance.

Download the paper from SSRN here.

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