The new intrusion

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20 Scopus citations


The tort of intrusion upon seclusion offers the best theory to target legitimate privacy harms in the Information age.This Article introduces a new taxonomy that organizes privacy regulations acrossfour key stages of information flow-Observation, capture (the creation of a record), dissemination, and use.Privacy scholars typically propose placing constraints on the dissemination and re-use of personal information, and these dominant modeis are at the heart of President Obama's Consumer Privacy Bill of Rights.But these restrictions conjlict with the First Amendment and other important shared values.Instead, Observation is the most promising stagefor legal intervention.Intrusion imposes liability for conduct-offensive observations.The tort is theoretically coherent and constitutionally sound because an individual's interests in seclusion co-exist comfortably with society's interests in data dissemination.This puts intrusion in stark contrast with other privacy modeis, where the alleged härm is a direct consequence of an increase in knowledge.The classic intrusion tort can adapt sensibly to new technologies when it is reduced to two essential elements: (1) an Observation, (2) that is offensive.This approach vindicates privacy law's historical roots in torts and offers a path to principled privacy regulation.

Original languageEnglish (US)
Pages (from-to)205-275
Number of pages71
JournalNotre Dame Law Review
Issue number1
StatePublished - Nov 2012

ASJC Scopus subject areas

  • Law


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