Please take a look at this interesting new article from M. Ryan Calo, titled The Boundaries of Privacy Harm (H/T Legal Theory Blog). He attempts to “uncouple[] privacy harm from privacy violations, demonstrating that no person need commit a privacy violation for privacy harm to occur (and vice versa).” Here is the abstract:

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the unwanted perception of observation. This category describes unwelcome mental states – anxiety, embarrassment, fear – that stem from the belief that one is being watched or monitored. Examples include everything from a landlord listening in on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against that person. These are negative, external actions justified by reference to personal information. Examples include identity theft, the leaking of classified information that reveals an undercover agent, and the use of a drunk-driving suspect’s blood as evidence against him.

The subjective and objective categories of privacy harm are distinct but related. Just as assault is the apprehension of battery, so is the unwanted perception of observation largely an apprehension of information-driven injury. The categories represent, respectively, the anticipation and consequence of a loss of control over personal information.

The approach offers several advantages. It uncouples privacy harm from privacy violations, demonstrating that no person need commit a privacy violation for privacy harm to occur (and vice versa). It creates a “limiting principle” capable of revealing when another value – autonomy or equality, for instance – is more directly at stake. It also creates a “rule of recognition” that permits the identification of a privacy harm when no other harm is apparent. Finally, the approach permits the sizing and redress of privacy harm in novel ways.

Calo also notes that massive outdoor surveillance has a high degree of subjective privacy harm:

Having described the properties of subjective privacy harm, however,

we can now say that the degree of aversion is small—2 out of 10, for

instance. But we do not stop here: we must multiply the degree of aversion

by the extent of surveillance. In the case of massive outdoor surveillance

by closed circuit television camera (“CCTV”) or pervasive aerial

photography, especially where the footage is stored and processed, the

extent of the surveillance is enormous. Thus, the ultimately harm can be

quite large (8 out of 10).149

This is the essence of the term I dubbed omniveillance, which I described as “omnipresent,omniscient, digital surveillance in public, broadcasted indiscriminately throughout the Internet, without any concern for newsworthiness.” The idea of a subjective category of privacy harm, focusing on “an apprehension of information-driven injury” jives well with the nature of the privacy tort I introduced in Omniveillance.

Calo also notes that massive outdoor surveillance has a high degree of subjective privacy harm:

Having described the properties of subjective privacy harm, however,

we can now say that the degree of aversion is small—2 out of 10, for

instance. But we do not stop here: we must multiply the degree of aversion

by the extent of surveillance. In the case of massive outdoor surveillance

by closed circuit television camera (“CCTV”) or pervasive aerial

photography, especially where the footage is stored and processed, the

extent of the surveillance is enormous. Thus, the ultimately harm can be

quite large (8 out of 10).149

As I discussed in Omniveillance.

The key to understanding privacy is to understand how a person chooses to change his speech and actions in varying contexts.72 Inherent in each human being is a dichotomy between what society sees of a person and what that person knows about himself.73 In fact, the “the first etymological meaning of the word ‘person’ was ‘mask,’ ” as everyone exists behind a façade.74 Generally, when a person is in public, he feels a cloak of anonymity. When no one is paying attention, people tend to act free and uninhibited.75

People may feel comfortable exhibiting certain behavior in front of one audience when anonymity exists, but not in front of another audience when privacy is lacking. A person may comfortably and freely express himself when he has the perception of anonymity, even if it is in front of a close group of friends because of the tight bonds within a social network,76 because there is less fear that what is said or done can be used against him to harm him. Anonymity allows people to act with fewer inhibitions, as they have the ability to control the risk of damage to their reputation.
The logical converse of this proposition is that when someone feels they are being watched, they tend not to act as free and uninhibited.77 When a person feels that others may be looking, he will generally act differently.78 Persistently recording a person and broadcasting the images out of context chills an individual’s ability to freely express himself. If a person knows, or even is apprehensive that he is being photographed by omniveillance, his behavior will be even further modified because the observation will be indelibly recorded forever.79 Recently, a German study analyzing how surveillance affects a citizen’s behavior found that [p]eople under surveillance behave differently than people who are not monitored—differently than free people.”80 Therefore, understanding the dynamic of people’s perception of anonymity in public is critical for promoting positive uninhibited expressions.

Privacy and free speech can be thought of as two sides of the same coin. They are complementary, rather than competing, interests.81 When properly balanced, they yield optimal results. To further explore this, it is necessary to visualize two extremes. In a world with no privacy protections and unrestricted free speech rights, where everything can be known about everyone, free expression would suffer. A person would not want to express his true thoughts for fear of embarrassment, ridicule, humiliation, or retribution.82 This fear would result in the ultimate chilling of speech.

However, in an alternate universe with absolute privacy rights and no free speech, there would be a similar outcome. A person would not be able to express his true thoughts, and would have to keep all of his emotions to himself. This restraint would also result in the ultimate chilling of speech. Therefore, rather than existing as competing interests, privacy and free speech complement one another when properly balanced to provide a symmetry to optimize people’s desire to express themselves, and at the same time, minimizes any apprehension that such an expression may cause. Without privacy, people do not comfortably speak candidly.83 Without free speech, people cannot speak candidly. For this reason, society should strive to achieve a dynamic equilibrium between free speech and privacy that can promote the optimal level of expression.

Calo also discusses the “notoriously difficult problem of ‘privacy in public”

The approach also furnishes criteria for “sizing” privacy harm and ranking their relative severity. In the case of subjective privacy harms, we can look to the degree of aversion to any observation as distinct from the extent of observation experienced. High degrees of both translate into the greatest harm, but harm is possible if either are very high.146

This insight is useful in describing the notoriously difficult problem of “privacy in public.”147 The law’s approach to privacy in public is monolithic: it generally refuses to see a privacy violation where the observation takes place in public on the theory that people in public have no reasonable expectation of privacy.148 In the absence of a privacy violation, meanwhile, we tend not even to look for privacy harm.

Perhaps focusing on a subjective privacy harm, rather than a privacy injury, to understand privacy in public is a more precise inquiry. This conception of privacy, balancing the “degree of aversion to any observation” to the “extent of observation experienced” somewhat mirrors the privacy tort I proposed:

The right to your digital identity is violated when an individual or organization records and reproduces an image of another without consent using a visual or auditory enhancing device while (1) the party recorded possessed a reasonable expectation of privacy to not be recorded; (2) the matter recorded would be offensive to a reasonable person; (3) the recording is intentionally widely transferred or disseminated through any electronic medium to any electronic format; and (4) the recording is not newsworthy, where a newsworthy recording (4a) has social value, (4b) minimally intrudes into ostensibly private affairs, and (4c) the party that is recorded voluntarily acceded to the position of public notoriety.

Excellent article. Definitely worth a read.