Steven Hazel, ‘Privacy Self-Help’

ABSTRACT
Today, millions of consumers practice privacy self-help. Some cover their laptop cameras; others communicate through encrypted messaging apps; still others delete sensitive documents. But while self-help has emerged as one of the primary ways that consumers manage privacy risks, it has attracted little scholarly attention.

To fill that gap, this Article offers a descriptive account of the relationship between privacy doctrine and self-help. As it turns out, privacy law relies on self-help to solve some of its most pressing problems. From the Fourth Amendment to the FTC’s unfairness authority, courts and regulators look to self-help to decide which disputes deserve attention and to conserve scarce resources. The upshot is that harnessing self-help has become a pervasive feature of modern privacy law.

Turning from the descriptive to the normative, this Article asks how law should respond to privacy self-help. Too often, self-help exposes the data it promises to protect. When self-help backfires, the conventional wisdom holds that courts and regulators should install legal remedies to replace it. But displacing self-help would disable the many doctrines that depend on it.

Challenging the conventional wisdom, this Article shows that legal institutions protect consumers best when they facilitate – rather than replace – self-help. By arming individuals with intelligence about self-help, courts and regulators can empower them to spot successful strategies and sidestep self-defeating ones. This approach promises to transform self-help from a popular yet unreliable practice into a potent weapon in the hands of millions of consumers.

Hazel, Steven, Privacy Self-Help (June 10, 2020). Berkeley Technology Law Journal, forthcoming.

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