101 Iowa L. Rev. 1113 (2016)

Download PDF

Abstract

Courts and commentators struggle to apply privacy law in a way that conforms to the intuitions of the average person. It is often assumed that the reason for this discrepancy is the absence of an agreed upon conceptual definition of privacy. In fact, the lack of a description of the interest invaded in a privacy matter is the more substantial hurdle. This Article provides such a description of the privacy interest.

Privacy is a quasi-property. Quasi-property is a relational entitlement to exclude. Unlike real property, there is no freestanding right to exclude from a quasi-property interest absent reference to a relationship between individuals. Rather, the right to exclude arises from the behaviors of the plaintiff and defendant. A defendant is identified based on a trigger arising from a relationship, action, or harm to a plaintiff. Prominent examples of doctrinal areas that employ the quasi-property model are information misappropriation and trade secret law.

The quasi-property model can account for the four privacy torts adopted as law in the vast majority of states and liberate privacy tort law from the ossification that has stunted its development and ability to adapt to modern conditions.