Randy Dryer

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Privacy is a complex, malleable and flexible concept that is influenced by evolving social, political, economic, technological and ethical factors.  Privacy means different things to different people at different periods of time.  It is not a concept that is susceptible to a simple description or definition.   Consequently, there are many different, sometimes competing, definitions of privacy and scholars and courts have struggled to find a common understanding and application of the term.  Privacy law has become an umbrella term that encompasses physical and mental privacy (the so called “right to be left alone”), informational privacy (which concerns the collection, use, protection and regulation of personal information), decisional privacy (which concerns the freedom to make decisions about one’s body, family, and personal life without government interference), associational privacy (which implicates access and exclusion issues), confidential and proprietary privacy (which concerns ownership,  control and contractual rights) and anonymity (which shields a person from unwanted attention).

In the U.S., the legal bases for the enforcement of privacy rights, however defined, is an interrelated hodgepodge of tort common law, federal and state constitutional law, federal and state statutory law, evidentiary privileges, professional ethical rules and consensual or contractual agreements.  The word “privacy” appears nowhere in the U.S. Constitution, but a right of privacy has been inferred from numerous provisions of the Constitution, including the First, Third, Fourth, Fifth and Fourteenth Amendments.

Because privacy rights are best understood contextually, the discussion and mapping of privacy law that follows is organized into sixteen broad subject matter categories.  These include

  1. Privacy and tort law

  2. Privacy and communications

  3. Privacy and association

  4. Privacy and law enforcement

  5. Privacy and national security

  6. Privacy and government records

  7. Privacy and healthcare

  8. Privacy and education

  9. Privacy and the home

  10. Privacy and employment

  11. Privacy and consumer protection

  12. Privacy and financial information

  13. Privacy and children

  14. Privacy and litigation

  15. Privacy and Guns

  16. Privacy and private lives and choices 

The discussion in each of these categories will identify the relevant constitutional, statutory, common-law and contractual sources that comprise the governing law in the area.  There will be some overlap between categories and such overlap will be noted.  International privacy law, although of increasing importance as our world shrinks, is not addressed.

Created on May 14, 2016 107