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Wednesday, April 09, 2014

Overcoming the Public-Private Divide in Privacy Law (Part 1)

I'm working on a project I'm calling "Overcoming the Public-Private Divide in Privacy Law."  Under the traditional public-private divide in privacy law, cases in which the privacy-invading party is in the public sector get analyzed under a 4th amendment framework, and cases in which the privacy-invading party is in the private sector get analyzed under a hodgepodge of non-4th amendment frameworks including privacy torts, trade secret law, state and federal statutes, etc. In the descriptive portion of the project, I want to offer an account of the ways in which this traditional public-private divide has broken down.  

First, courts have been drawing analogies across the private and public sectors without any real consideration for when these analogies make sense.  For example, in public sector workplace privacy cases courts, including the Supreme Court, look to the private sector, although when private sector workplace privacy cases arise courts generally note emphatically that the Fourth Amendment framework does not apply.  By contrast, in private sector trade secret cases, courts will look to the 4th amendment cases for analogies, but the 4th amendment cases tend to reject analogizing to trade secret cases.  

Second, the private-public divide in privacy has broken down in various ways with respect to how information is obtained and whether it remains in the original sector.  This includes reverse FOIA claims and privacy merchants selling data to the government.    

I would love any thoughts/suggestions regarding these or other breakdowns in the divide. 


Posted by Victoria Schwartz on April 9, 2014 at 12:33 PM | Permalink


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Coming from the perspective of a Fourth Amendment nerd, I've found that the Fourth Amendment cases ignore the non-government privacy cases while the non-government privacy cases routinely invoke and misapply language from Fourth Amendment law. So it's sort of a one-way breakdown, with the language being used but not applied correctly or consistently.

You write: "in public sector workplace privacy cases courts, including the Supreme Court, look to the private sector." Could you elaborate on that? I'm not entirely sure what you mean.

Posted by: Orin Kerr | Apr 10, 2014 5:56:30 PM

Thanks Orin. As someone who comes at this project from the private-law side of privacy law, the perspective of a Fourth Amendment nerd is very helpful. Part of what I am trying to tackle with this project is precisely, as you point out, that courts are not consistent in when to look to the Fourth Amendment cases in the private sector cases and vice versa. As you will see with my next post, I am trying to develop a satisfying way to decide when such cross-sector application is and is not appropriate.

With regard to the public sector workplace privacy cases, the Court has looked to the private sector to decide how the Fourth Amendment is to apply. For example in Quon, in applying Justice Scalia's test from O'Connor the Court finds that the search "would be regarded as reasonable and normal in the private-employer context." Even the plurality opinion in O'Connor looks to the private sector to a certain degree: "Public employees' expectations of privacy in their offices, desks, and file cabinets, like similar expectations of employees in the private sector, may be reduced by virtue of actual office practices . . . " Paul Secunda has a nice article, Privatizing Workplace Privacy, 8 Notre Dame L. Rev. 277 (2012), where he describes this phenomenon in the workplace privacy context. I agree with you that this is not how courts treat the private sector in other areas of the Fourth Amendment law. Later in the normative portion of the paper I will explore whether perhaps there is something unique about workplace privacy that can justify this difference.

Posted by: Victoria Schwartz | Apr 10, 2014 6:21:47 PM

"invoke and misapply"

I respect lower court opinions, law professors and others who have to basically pretend a rightful consistency that isn't quite there.

Posted by: Joe | Apr 10, 2014 8:40:25 PM

I think the Fourth Amendment caselaw on public workplace searches is sui generis; it's a quirky corner of Fourth Amendment law that has only limited significance for the meaning of the Fourth Amendment more broadly. In O'Connor v. Ortega, Justice O'Connor didn't like the idea of government employees having no Fourth Amendment rights or the idea of government employers needing to justify routine workplace conduct under the Fourth Amendment and its warrant requirement. So instead of saying that the Fourth Amendment applied in its normal way or not at all, O'Connor's plurality opinion creates a weird hybrid REP test that doesn't share much in common with the normal REP test. My 2 cents, at least.

Posted by: Orin Kerr | Apr 11, 2014 3:10:34 AM

Your post says "cases in which the privacy-invading party is in the public sector get analyzed under a 4th amendment framework." This overlooks a major way that public-sector actors invade privacy - when agencies demand private information from companies or other regulated parties. There's essentially no 4th amendment restriction on those kinds of information-gathering requests by agencies. Instead those requests get handled by admin law doctrines on administrative subpoenas. Not sure what this does to your normative project, but it is a necessary complication to the 'public' part of the descriptive half.

Posted by: Wei Wei | Apr 11, 2014 12:35:31 PM

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