Tactful Inattention: Erving Goffman, Privacy in the Digital Age, and the Virtue of Averting One\u27s Eyes

(Excerpt) This Article suggests that we would benefit if we would protect privacy by sometimes requiring tactful inattention by potential users rather than total secrecy by the target. That is, some legal privacy protections should stop emphasizing secrecy and instead emphasize the appropriate uses of personally identifiable and often sensitive information by gelling tactful inattention into legal standards. Culturally, such an expansion may be difficult, as we tend to a “finders-keepers” attitude towards data. However, given technology’s ability to dissolve routine barriers, if we require others to leave some information out of some equations, we may be able to retain the personal flourishing that privacy promotes, without unduly impairing the information needs of others. Not only has the tactful inattention paradigm already existed in some traditional areas of law, but it also has occurred in some new laws in specific areas of recent concern. Part I discusses the benefits to flourishing that privacy provides, both individually and within relationships. Part II describes the development of the tactful inattention paradigm in various areas of law. Part III suggests two specific areas that might benefit from a paradigm of tactful inattention: the use of certain behavioral information by employers to screen applicants and employees, and the use of similar information by political campaigns and vendors to target behavioral advertising and for vendors, micro-target pricing. Finally, Part IV describes the benefits of a tactful inattention approach to privacy in the digital age

To Cloak the Within: Protecting Employees from Personality Testing

Employees and job applicants are often subjected to personality tests that seek sensitive, internal information. These tests can intrude on individual privacy simply by their inquisition, and disclosure of their results can pigeonhole and stigmatize people. The work of sociologist Erving Goffman offers insights into the nature of these harms. Furthermore, the personality tests often do not reliably and accurately measure personality traits, and employers may not have accurately identified traits that enhance performance in specific jobs. Current legal structures, including the federal and state constitutions and the Americans with Disabilities Act, may apply to such tests, but are inadequate to protect privacy. An effective legal structure would recognize these potential harms of personality testing and restrict employers from using them, requiring employers to justify the particular use of a test and limiting permissible tests to those that have demonstrated reliability and validity and have been shown to accurately predict improved job performance in the specific position sought to be filled. Furthermore, such a structure should require employers to maintain the confidentiality of the test results, and hold accountable employers who fail to comply with these privacy-protecting provisions

Preventing Preemption: Finding Space for States to Protect Consumers\u27 Reputations

The Great Recession awoke state legislators to the power of individuals’ credit reports to hinder their economic opportunities. Many legislators would like to assuage the effects of bad historical events on the futures of the citizens that they represent. Among the topics they can address are employers’ use of credit reports, the presence of criminal record information in credit reports, and the toxic effects of identity theft and medical debt on credit reports. However, the federal Fair Credit Reporting Act’s preemptive effects must be acknowledged and negotiated. This article evaluates potential state legislative efforts against the FCRA’s preemption provisions and current Supreme Court preemption doctrine to identify strategies for states that want to create effective legislation to protect their consumers’ credit reputations and expand their constituents’ opportunities going forward

The Literary Language of Privacy—How Judges\u27 Use of Literature Reveals Images of Privacy in the Law

George Orwell’s Nineteen Eighty-Four. When we think of literary works and privacy, that is the first book that comes to mind, and the same is true for judges penning privacy law opinions too. Although the novel is notable for expressing fears of authoritarian overreach, other literary works offer judges a tool for describing the plights of parties before them—parties who seek to vindicate breaches of privacy in many different forms. Nineteen Eighty-Four particularly suits cases that challenge government surveillance or non-governmental wiretapping. References to Franz Kafka and Joseph Heller illuminate other privacy harms, such as unease with governmental collection, manipulation, and release of data. Nathaniel Hawthorne’s The Scarlet Letter comments on punishment via exposure of stigmatizing information. William Shakespeare, centuries ago, spoke knowingly of the peculiar pain arising from injury to one’s reputation. Judges have referenced all these works in majority and dissenting opinions to help make concrete the often amorphous, but still very real, damage that privacy breaches can cause. This Article organizes many of these opinions according to the type of privacy invasion and provides examples of how judges’ language can help us show why the law provides remedies, however imperfect and unevenly provided, for privacy harms

A Dearth of Remedies

Federal privacy statutes purport to solidify norms for the privacy of our personal information, whether financial, medical, or other. They impose burdens on those who have control over such information. However, they often fail to offer real remedies when those burdens are not met. As a consequence, individuals may falsely perceive that the disclosure of their private data will be punished, while the regulated receive comfort that they can breach privacy with impunity. This trend of toothlessness in federal privacy law began with the Fair Credit Reporting Act, which allows some, but not complete, private remedies, and has continued through the Health Insurance Portability and Accountability Act, the Gramm-Leach-Bliley Act, and the Fair and Accurate Credit Transactions Act. Most recently, the trend appears in congressional bills offered to protect the security of personal information, bills that prohibit private remedies and preempt such remedies that otherwise exist in state laws. However, given the importance of privacy norms and the tradition of rights and remedies for privacy at the state level, states should seek to push their capacities to use laws, whether common or enacted, to protect their citizens to the very limits they can. Enforcement of social privacy norms, as embodied in laws state or federal, is necessary to protect personality and dignity. States can resume their traditional roles as protectors of their citizens by responding to increased threats to privacy through adapting common law torts or by enacting legislation; where these instruments provide enforcement through private causes of action, those protected by the instruments can vindicate their rights. More importantly, such remedies can deter violations to begin with, the ultimate aim of any privacy provision