Privacy As Trust: Sharing Personal Information in a Networked World

University of Miami Law Review Volume 69 Number 3 Volume 69 Number 3 (Spring 2015) Article 4 5-1-2015 Privacy as Trust: Sharing Personal Information in a Networked World Ari Ezra Waldman Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation Ari Ezra Waldman, Privacy as Trust: Sharing Personal Information in a Networked World, 69 U. Miami L. Rev. 559 (2015) Available at: https://repository.law.miami.edu/umlr/vol69/iss3/4 This Article is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact [email protected]. \\jciprod01\productn\M\MIA\69-3\MIA303.txt unknown Seq: 1 2-SEP-15 13:40 University of Miami Law Review VOLUME 69 SPRING 2015 NUMBER 3 ARTICLES Privacy as Trust: Sharing Personal Information in a Networked World ARI EZRA WALDMAN* This Article is the first of a series discussing the legal and sociological aspects of information privacy, arguing that private contexts are defined by relationships of trust among individuals. The argument reorients privacy scholarship from an individual right to social relationships of disclosure. This has implications for a wide variety of vexing problems of modern privacy law, from limited disclosures to “revenge porn.” The common everyday understanding is that privacy is about choice, autonomy, and individual freedom. It encompasses the individual’s right to determine what he will keep hidden and what, how, and when he will disclose to the public. Privacy is his respite from the prying, conformist eyes of the rest of the world and his expectation that the things about himself that he wants to keep private will remain so. These ways of understanding privacy are variations on the same * Associate Professor of Law and Director, Institute for Information Law and Policy, New York Law School; Ph.D., 2015, Columbia University; J.D., 2005, Harvard Law School. Special thanks to Peter Bearman, Gil Eyal, Jeffrey Goldfarb, Greg Eirich, Diane Vaughan, Debbie Becher, Frank Pasquale, Danielle Citron, Richard Sherwin, Robert Blecker, Richard Chused, Dan Hunter, Ann Thomas, Alan Appel, David Schoenbrod, Stephen Ellman, Tamara Belinfanti, Jake Sherkow, Ruti Teitel, Ed Purcell, and Art Leonard. Thank you to the administration and faculty of New York Law School for giving me the opportunity to work on this project. A version of this Article was presented before the faculties at New York Law School, Penn State Dickinson School of Law, and Northern Kentucky University School of Law and before faculty members and students at Columbia University. This paper was also delivered as a presentation at the Internet Scholars Works-in-Progress Conference in New York City on March 8, 2014 and as part of a panel at the Law and Society Conference in Minneapolis, Minnesota on May 30, 2014. Special thanks to all those who helped me develop the project by asking important questions, including John Paredes, Jason Jones, Brian Chelcun, and Boyan Toshkoff. 559 \\jciprod01\productn\M\MIA\69-3\MIA303.txt unknown Seq: 2 2-SEP-15 13:40 560 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 69:559 theme: that privacy is a tool of the individual “against the world.” None of them adequately protect personal privacy where sharing personal information with others is a precondition of modern life. This Article argues that in this information disclosure context, privacy is really about trust. Rather than accept the traditional division between public and private, and rather than begin and end the dis- cussion of privacy as an individual right, this Article bridges social science and the law to argue that disclosures in contexts of trust are private. Trusting relationships are determined by the presence of experience, strong overlapping networks, identity sharing, and other indicia derived from the totality of the circumstances. This conceptu- alization of privacy, and its related ways of defining when invasions of privacy occur, more effectively protects privacy in a modern digi- tal world. The Article argues that law of privacy, therefore, should be used to protect relationships of trust, rather than to protect a collec- tion of individual rights. To this end, this Article proposes a robust tort for breach of confidentiality as one tool to protect privacy in a networked world and illustrates the functionality of this tort through a case study of privacy in previously disclosed information. I. INTRODUCTION ...................................................... 560 R II. THE CONVENTIONAL WISDOM: RIGHTS-BASED THEORIES OF PRIVACY ......... 565 R A. Privacy as Freedom From ......................................... 567 R 1. SEPARATION, SEQUESTRATION, AND EXCLUSION .................... 568 R 2. INTIMACY, SECRECY, AND DEVIANCE ............................. 574 R B. Privacy as Freedom For.......................................... 581 R 1. INDIVIDUALITY, INDEPENDENCE, AND PERSONHOOD ................. 582 R 2. AUTONOMY, CHOICE, AND CONTROL ............................. 585 R C. Moving Away from Rights ......................................... 588 R III. PRIVACY-AS-TRUST ................................................... 590 R A. Social Theories of Privacy ........................................ 591 R B. Breaches of Privacy as Breaches of Trust ............................ 595 R C. The Sociology of Trust ............................................ 601 R 1. WHAT IS TRUST?............................................. 602 R 2. HOW DOES TRUST DEVELOP?................................... 606 R D. Benefits of the Approach .......................................... 610 R IV. APPLYING PRIVACY-AS-TRUST: A CASE STUDY IN PRIVACY LAW ............................................................... 616 R A. The Tort of Breach of Confidentiality ............................... 618 R B. Further Disclosure of Previously Revealed Information ................ 621 R V. CONCLUSION ........................................................ 629 R I. INTRODUCTION Most individuals think of the private world as a place distinct or separate from other people. Private spheres presume the existence of public spheres, but only as things from which to detach. I disagree. What follows is a reorientation of the way we think about privacy in the information-sharing context around sociological principles of interpersonal \\jciprod01\productn\M\MIA\69-3\MIA303.txt unknown Seq: 3 2-SEP-15 13:40 2015] PRIVACY AS TRUST 561 trust rather than rights-based doctrines of autonomy and choice. The argument is simple: privacy is not exclusively bound up with concepts of choice, autonomy, or seclusion; rather, privacy is a social fact—a constant in our lives—that is based on relationships of trust among individuals and between individuals and institutions. In short, we share when we trust; we retain privacy rights and interests in contexts of trust. Or, put another way, what makes expectations of privacy reasonable are expectations of trust. Privacy scholarship is no stranger to social theory, but the relation- ship is still underdeveloped. Both lawyers and sociologists appear to have taken on the traditional assumption that the private world is distinct from the public world. In one of his major works, Erving Goffman lamented the “process of personal identification,” or how easy it is to amass personal information about any given individual and make public his social identity.1 He saw individuals as nodes at the center of several social networks that knew different things about those individuals, thus recognizing that some personal information can be withheld, or kept private, from the general public at the individual’s discretion.2 And Goffman is not alone. The sociologist Georg Simmel began his seminal article, The Sociology of Secrets and of Secret Societies, by stating that “[a]ll relationships of people to each other rest . upon the precondition that they know something about each other,”3 but recognizing that we rarely, if ever, know everything about another person.4 Our perceptions of others, based on what we know, what we think we know, and both true and misleading facets of personality, are true for us,5 even if they are manipulated by a delicate balance between secrets and disclosures: “Our fellow man,” Simmel wrote, “either may voluntarily reveal to us the truth about himself, or by dissimulation he may deceive us as to the truth.”6 He may, in other words, choose to keep certain things private and choose to make certain things public. Public opinion polls suggest that when most people think of privacy and private things, they think of protection, being hidden, or sepa- 1. ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 57 (1963) [hereinafter STIGMA]. 2. Id. at 72. See generally ERVING GOFFMAN, BEHAVIOR IN PUBLIC PLACES: NOTES ON THE SOCIAL ORGANIZATION OF GATHERINGS (1963) [hereinafter BEHAVIOR IN PUBLIC PLACES] (discussing behavior in public places, specifically the aspect of public order pertaining to the conduct of individuals by virtue of their presence among others). 3. Georg Simmel, The Sociology of Secrecy and of Secret Societies, 11 AM. J. SOC. 441, 441 (1906). 4. Id. at 442. 5. Id. at 443. 6. Id. at 444–45. \\jciprod01\productn\M\MIA\69-3\MIA303.txt unknown Seq: 4 2-SEP-15 13:40 562 UNIVERSITY OF MIAMI LAW REVIEW [Vol. 69:559 ration.7 The popular view

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