Talk by Christine Jolls on Rationality and Consent in Privacy Law

Date/Time
Date(s) - 04/19/2012
12:00 pm - 1:00 pm

We are excited to welcome Christine Jolls, the Gordon Bradford Tweedy Professor of Law and Organization at Yale Law School, to UNC School of Law for a talk about her article entitled “Rationality and Consent in Privacy Law.”

Professor Jolls’ research and teaching concentrate in the areas of employment law, privacy law, behavioral law and economics, and government administration. In additional to teaching at Yale, Professor Jolls also serves as the Director of the Law and Economics Program at the National Bureau of Economic Research. Previously she worked as a law clerk at the Supreme Court of the United States in the chambers of Justice Antonin Scalia. Professor Jolls received her J.D., magna cum laude, from Harvard Law School and her Ph.D. in Economics from M.I.T., where she was a National Science Foundation Graduate Fellow.

Here is an excerpt from the introduction:

Consent has always played a central role in conceptions of privacy. “The root idea . . . of privacy is that of a privileged territory or domain in which an individual person has the exclusive authority of determining whether another may enter, and if so, when and for how long, and under what conditions. Within this area, the individual person is . . . boss, sovereign, owner.” The “right to be let alone” has always been limited by the desire of most of us not to be left entirely alone. Thus, Robert Post observes, “the norms policed by [privacy law] are different” from nonwaivable norms such as those prohibiting murder; privacy norms “mark the boundaries that distinguish respect from intimacy, and their very ability to serve this function depends upon their capacity for being enforced or waived in appropriate circumstances.”

In light of the central role of consent in defining the right to privacy, it is puzzling to encounter a stubborn contrary resolution of the consent issue in cases in which written agreements purport to authorize privacy-invading practices, such as employee drug testing or the search of a premises for property held by a consumer in default on a loan. Courts that eschew reliance on consent in resolving privacy challenges to behavior expressly authorized by such written agreements resolve those challenges instead on the basis of substantive determinations of the acceptability of the challenged practices in light of various privacy and nonprivacy interests at stake. Thus, for instance, in Seta v. Reading Rock, Inc., an employee had entered into a written drug-testing agreement, which was individually signed by the employee and exclusively covered the topic of drug testing (rather than covering many different employment-related topics with the attendant risk that the employee was unaware of the agreement’s contents). However, when the employee submitted a urine sample for testing three months later and then brought a privacy challenge to his discharge after he tested positive, the court adjudicating his challenge did not invoke the parties’ written agreement at all. Instead it referred to the employer’s business and safety reasons for drug testing and, on that basis, upheld the testing. Additional privacy cases fitting the same pattern of failing to weigh written agreements, involving both drug testing and other behavior, such as searches of consumers’ homes for defaulted-upon property, are described in detail in Part I.C below. Sometimes the courts in these cases uphold the behavior covered by the written agreement (as in Seta) and other times (as in the consumer search cases just mentioned) they strike it down, but in neither circumstance does the written agreement factor in the court’s reasoning.

What can account for the insistent denial of the role of written agreements in these cases? This denial calls out for attention in light of the backdrop presumption of consent’s dispositive role in determining privacy rights. William Prosser, the originator of the influential four-part common law test for invasion of privacy, stated unequivocally that “chief among the available defenses is that of the plaintiff’s consent to the [privacy] invasion, which will bar his recovery.” While privacy law commentators have very frequently questioned the role of consent on normative grounds, the descriptive picture of agreement sometimes providing, but other times denying, immunity for privacy-invading behavior has gone unaddressed and remains in a puzzlingly muddled state. This Article both surfaces an underlying order in the treatment of agreement in the common law privacy cases and shows how this descriptive theory of privacy and agreement helps to sharpen normative analysis of the role privacy law affords to such agreement.

You can download the entire paper here. Professor Jolls will be at Carolina Law on April 19, 2012 at noon as part of the law school’s Faculty Speaker Series.