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Home > Privacy and Business > The Search for Consumer Harm

The Search for Consumer Harm

Many discussions of privacy assume that collection and use of information about people automatically hurts them. This has never been recognized as a legal injury before, however. No discussion of privacy is complete if it does not concretely identify what real harms modern uses of information bring.

It is not clear that increased collection of personal information itself harms consumers, and there are many ways that consumers can protect themselves from both collection and harm. We must discover whether Information Age uses of personal information cause any new, distinct harms to privacy that must be protected against.

The four privacy torts that William Prosser summarized in 1960 can be committed more quickly and thoroughly thanks to technology. Yet, in some cases, technology can provide better protection against them. And consumers already have remedies if any of these torts are committed against them. Again, it is new harms that we must discover.

Collecting personal information did not originate with the Internet, and it has never before been deemed to cause a recognizable harm. Some have argued that the mere knowledge that personal information is collected injures oneís "personality," but this theory has not taken hold. Such a right would be impossible to enforce, especially because the biggest systematic collectors of information are governments. Considering, also, that parents, neighbors, coworkers, and teachers all constantly collect information on the people around them, preventing collection of information would be a massive intrusion into social customs. People may be uncomfortable imagining what collections of their personal information may reveal, but that is a different concern, and publicizing such information is already a common law privacy tort.

Perhaps communicating with a private individual for commercial purposes, while knowing personal information about them, harms them in some way. Though this harm has never been recognized before, it would be consistent with the arguments made by privacy advocates that are premised on there being something sinister about commercial speech and marketing. Such advocates need to make the case, if they can, that being marketed to (in a way not otherwise offensive to common law privacy protections) is harmful. This is the most likely way that a new harm to consumers can be created from modern information practices.

The availability of personal information sometimes does assist a criminal in perpetrating crime. For example, "identity theft" is the fraudulent use of personal information to assume the identity of another person. This series of criminal acts has become easier to commit with the increased availability of information in the modern era. The federal Drivers Privacy Protection Act was passed after driverís license information helped a killer find a womanís home and murder her there. Driverís license information is compiled and revealed by government agencies, and the woman did not have the practical option of protecting this information from being revealed.

Crimes that make use of personal information are better treated as the crimes that they are, rather than as invasions of privacy. Proposals to limit uses of information in order to prevent crime should be recognized for what they are: crime control, not privacy protection. So, while there is no doubt that information may be used in harmful ways, there have yet to be found harmful uses of information that are not already addressed by the tort laws or the criminal laws.


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[updated 8/29/00]

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