Technology & Litigation

I must take a moment to open with a caveat.  The study of privacy and hence privacy law or privacy litigation is an analysis that spans centuries.  In fact, while it seems like privacy issues have only recently come to the forefront with the advent of technology, they have, in fact, been prevalent in ever major level of recorded history.  I put this point out there to help you recognize that there are books and books addressing the issues of privacy and my little foray into the issue is but a nail-scratch on the surface of a very large issue.  Nevertheless, I would be remiss in my role as an Indiana technology lawyer if I didn't delve into the issue at least from an overview perspective.  Now, onto the bigger (and better) question of "what the heck is it?".  There are, in my humble opinion, four basic approaches to this question:  (1) academically; (2) legally; (3) structurally; and (4) realistically.  I will address each approach separately.

Academic Perspective:  In the simplest of academic terms, privacy law is the method and mechanism of protecting the private matters or interests of the citizen.  This definition leads to the ultimate issue from the scholarly perspective of what is privacy.  The debate over that simple term, however, has raged for years and encompasses an extremely wide umbrella of ideas.  From a political perspective, privacy is that sphere of information that wholly belongs to the individual and is unnecessary for the overall governmental function.  Aristotle believed that there were two spheres.  The first is the public sphere and in this sphere is the information necessary to govern the polis or city-state.  The other sphere is the individual sphere in which each person has the information and matters pertinent to only themselves.  It does not impact the polis and is solely private, but must exist to ensure the welfare of the entirety.  Later, John Lock would address the issue by theorizing that the inherent state of man (the state of nature) is one in which they all have equal right to their self.  It is this act of giving up some of these rights to the greater body that leads, according to Locke, to the development of organized government. 

Anthropologically,  privacy are those matters that we keep from the community at large.  Anthropologists have found that even in social settings where there is very little physical privacy, the members of that society will act to protect their own privacy in other matters (i.e. hiding feelings, averting eyes, etc) to maintain some level of intimacy and ultimately, individuality.  And this doesn't even get into philosophically, economically, medically, or any other - ly of which we may think.  As you can see, the academic perspective is somewhat scattered, but the overarching theme is that privacy (and subsequently privacy law) is the component of self that is maintained to establish and maintain the individual.  

Legal Perspective: From the legal perspective, privacy law is the protection of information related to the person.  There are two basic types of legal perspective.  The first is the protection of private information from a constitutional perspective.  This is the basic premise behind the Fourth Amendment.  The idea that citizens are free from the government simply prying into their business is fundamental to American jurisprudence.  It is also a fundamental difference between the United States and other countries that has led to some very interesting debates related to privacy, but we'll cover that more in Part 2.  From a constitutional standpoint, privacy is the protection of the individual from the invasion of the government without a reason.  The other legal perspective is the protection of information from the tort perspective.  These are the private causes of actions that relate to the invasion of privacy and lead to the majority of the privacy litigation that we see today.  Questions such as: can my employer look at my e-mails;  can my insurance company see my health records;  can this website give my address to the cyberworld.  These questions are the bread and butter of the tort perspective.  And, frankly, are the most important to my clients.  But overall, the legal perspective of privacy is, like the academic perspective, focused on the establishment and maintenance of barriers between individuals.

Structural Perspective:  What I'm calling the structural perspective is actually the most amorphous perspective that I've made up.  It is deals with the components and subparts that make up privacy law because the parts make up the whole.  But, the components of privacy law are as widely varied as the other definitions.  There is a component for protecting information about one's health.  There is a component for protecting those activities that one engages in in their home.  There is a component for protecting the contents of one's vehicle or property.  There is a component for protecting one's personal contact information.  There is a component for protecting one's financial information.  The list goes on.  Needless to say, from a structural perspective, privacy law is the protection of that information that is necessary and pertinent to our identity, well-being, and overarching individuality.  

Realistic Perspective:   Finally, we get to the perspective that is most likely to impact our individual lives.  For the individual, privacy law realistically means those steps and actions that one must take or protect to ensure that information pertinent to your well-being is protected from dissemination to parties without legitimate interest in the information.  Whether this is monitoring against identity theft or moving to quash a subpoena that seeks information in violation of HIPAA.  These are the steps that have to be done to protect your individual information.  For the business, privacy law realistically means the steps and actions that must be undertaken to protect against the dissemination of information related to either my clients, my products, or my business perspectives.  This is important both from a regulatory approach and a litigation approach.  Both individuals and businesses need to know (a) what information is protected and (b) how to protect it.  These are the fundamental realistic questions to be answered.  

So, in conclusion, privacy law is an enigma wrapped in a riddle.  We know we need it, but aren't always a hundred percent sure what it is.  It is rooted in our mythos and theory.  It is part of the underpinnings of society, both American and human in general.  And, the more connected we get, the more important it becomes.  In Part 3, I'll take a look at some of the major legal precedents on the issues of privacy law and litigation.  Stay tuned.