Tort law vs. privacy

Abstract

Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to disclose sensitive information, to gather such information, and to install comprehensive surveillance. And such pressure is growing, as technology makes surveillance and other information gathering more cost-effective and thus more likely to be seen as part of defendants’ obligation of “reasonable care.” Moreover, these tort law rules can increase government surveillance power as well as demanding greater surveillance by private entities. Among other things, the NSA PRISM story shows how easily a surveillance database in private hands can become a surveillance database in government hands. This article aims to provide a legal map of this area, and to discuss which legal institutions -- juries, judges, or legislatures -- should resolve the privacy vs. safety questions that routinely arise within tort law.