Recent decisions by the Supreme Court in Carpenter v. United States and the Illinois Supreme Court in Rosenbach v. Six Flags Entertainment Corporation signal a shift in the traditional understanding of what exactly is protected by a privacy interest. Carpenter distinguished between a police officer’s observation of a suspect’s location and a perpetual catalogue of a person’s movements obtained through cell site location information (CSLI). The pervasive and vast quantity of information from CSLI exposed a protected privacy interest. In Rosenbach, the Illinois Supreme Court found the unique and personal quality of biometric information meant that consent and disclosure requirements under the state’s Biometric Information Privacy Act (BIPA) were not “merely technical in nature” and did not require additional allegations of harm. These decisions move away from a binary conception of privacy - which ignores distinctions between types of information disclosures and the harm emanating from them - toward a contextual conception of privacy - which takes into account the quality and quantity of information as well as the original purpose of the disclosure.
An examination of sociological definitions of deviance help to understand contextual privacy. Section I notes that sociological deviance is highly contextual and relational, depending not only on the specific behavior or characteristic, but also on the group that defines or enforces the characteristic as deviant. Because deviance depends on the potential imposition of sanctions by others, the manner of disclosure and the extent of distribution of information matters. Section II examines the “Nothing to Hide” arguments developed by Professor Daniel Solove and noted in the dialogue between the majority and the dissenters in Carpenter. Section III argues that there is inherent value to deviance. A better understanding of the concept of deviance not only adds value to specific policy debates about privacy and security, but also highlights the importance of diversity in our communities.
The Value of Deviance: Understanding Contextual Privacy,
Loy. U. Chi. L.J.
Available at: https://scholarlycommons.law.cwsl.edu/fs/377