Tort law is often seen as a tool for protecting privacy. But tort law can also diminish privacy, by pressuring defendants to gather sensitive information about people, to install comprehensive surveillance, and to disclose information. And the pressure is growing, as technology makes surveillance and other information gathering more cost effective and thus more likely to be seen as part of defendants’ duty to take “reasonable care.”
Moreover, these tort law rules can increase government surveillance power, and not just surveillance by private entities. Among other things, the NSA PRISM story shows how easily a surveillance database in private hands can become a surveillance database in government hands.
This Article aims to provide a legal map of how tort law can diminish privacy, and to discuss which legal institutions—juries, judges, or legislatures—should resolve the privacy-versus-safety questions that routinely arise within tort law.