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This Article examines how the prevailing legal conception of privacy facilitates the erosion of privacy. The law generally measures privacy by reference to society’s reasonable expectation of privacy. If we think of the universe of legally private matters as a sphere, the sphere will contract (or least in theory) expand in accordance with changing social expectations. This expectations-driven conception of privacy in effect establishes a privacy marketplace, analogous in both a literal and metaphorical sense to a marketplace of ideas. In this marketplace, societal expectations of privacy fluctuate in response to changing social practices. For this reason, privacy is susceptible to encroachment at the hands of large institutional actors who can control this marketplace by affecting social practices.

This Article also identifies two essential elements of the erosion privacy: embedded imprecision and internalization. We find imprecision embedded in the expectation-driven conception of privacy because of the inevitable grey area between what society clearly expects to be protected (that is, private), and what it clearly understands to be unprotected. Effective encroachment occurs through incremental incursions into this gray area of unsettled expectations. Moreover, individuals internalize each incremental step of encroachment, and thereby lose any sense that privacy was once possible in the encroached upon area. Because of this internalization, the expectation-driven privacy test cannot account for the cumulative effect of successive encroachments. Instead, its focus on the current level of expectations facilitates the incremental erosion of privacy.

Finally, this Article examines pervasive failures in the literal and metaphorical privacy marketplaces. Given the expectation-driven vulnerability discussed above, preservation of privacy depends upon the individual’s ability to resist encroachment into the private sphere. However, informational asymmetry, unequal bargaining power, and collective action problems conspire against them in both the economic and political marketplaces. Equally problematic are the inevitable unintended consequences that flow from a single encroachment. These phenomena stack the deck against those who would preserve the private sphere, and in favor of those who benefit from its erosion. Without some structural changes to restore the balance, the erosion of privacy may be a foregone conclusion.


Originally published by the San Diego Law Review in 2002.