Washington University School of Law professor Neil Richards and George Washington University Law School professor Daniel Solove have an important new law review article out. Privacy’s Other Path: Recovering the Law of Confidentiality is a useful reminder of a dimension of privacy apart from the privacy torts so famously inspired by Warren and Brandeis in their 1890 Harvard Law Review article.
Confidentiality is the idea that you can share information subject to restrictions on further disclosure and use. There are often implicit understandings about how shared or mutually created information should be treated. It’s an important point that’s been conveniently forgotten in government arguments for “data retention,” for example. Confidentiality in the financial services sphere has been eviscerated by the Bank Secrecy Act and the Supreme Court cases that followed it, as well as Smith v. Maryland in the telecommunications context.
Richards and Solove’s work has its awkward turns - they characterize continental Europe’s focus on dignity and America’s focus on liberty as highly individualistic, while suggesting that confidentiality is ”based on the protection of relationships.” If these characterizations are relevant at all, confidentiality can be seen just as much as a protection of individuals, the difference being that confidentiality is rooted more deeply in contract. Small matter, though.
Overall a good work, and an important reminder.