The Changing Nature of Privacy Practice

[Commentary] In a sense, today’s uncharted territory brings privacy protection full circle.

When Samuel Warren and Louis Brandeis wrote their seminal article on the right to privacy, they inferred the right from the common law. One of the main lines of authority they looked to was the law of implied trust -- the principle that one entrusted with confidential information owes a duty to the person whose information it is. Trust law separates legal ownership, custody and control of an asset from its benefit and imposes on the trustee duties to protect the interests of the beneficial owner and avoid self-dealing. These principles resonate anew today, when trust is an essential feature in a digital world. Trust in this broad sense can find a touchstone in the intuitive principles of the common law. Those who collect information need to act as stewards of data; they owe duties to those from whom the information comes to put the interests of the beneficiaries first and use data in ways that benefit the latters' interests and not in ways that can cause them harm. Trust law developed the benchmark of “the prudent man” (in those days, they were all men), a person imbued with good judgment. Managers of privacy increasingly are called on to exercise this sort of judgment over a broad range of issues.