Over on Concurring Opinions, Peter Swire explains why he doesn’t teach the privacy torts in his privacy law class. He writes, in part:
Privacy torts aren’t about the data. They usually are individualized revelations in a one-of-a-kind setting. Importantly, the reasonableness test in tort is a lousy match for whether an IT system is well designed. Torts have not done well at building privacy into IT systems, nor have they been of much use in other IT system issues, such as deciding whether an IT system is unreasonably insecure or suing software manufacturers under products liability law. IT systems are complex and evolve rapidly, and are a terrible match with the common sense of a jury trying to decide if the defendant did some particular thing wrong.
That certainly helps answer questions I’ve raised repeatedly on this blog, as to which privacy tort might apply in a particular situation that I find disturbing or egregious. It also helps explain why I find myself turning to the FTC more to go after businesses under their authority to address unfair business practices that can harm consumers.
Read more on Concurring Opinions.