An Expressive Theory of Privacy Intrusions

The harms of privacy intrusions are numerous. They include discrimination, reputational harm, and chilling effects on speech, thought, and behavior. However, scholarship has yet to fully recognize a kind of privacy harm that this article terms expressive. Depending on where the search is taking place and who the actors involved are--a teacher in a school, the police on the street, a food inspector in a restaurant--victims and observers might infer different messages from the search. The search marks the importance of certain societal values such as law enforcement or food safety. It can also send messages about certain groups by signaling the immaturity of children, the ignorance of women who seek abortions, the untrustworthiness and moral inferiority of prisoners, probationers, and parolees, and the danger of those with certain diseases. Conversely, searches emphasize the special social trust held by schools, parents, prison wardens, policemen, and the American public. The Supreme Court has, in many instances, recognized these effects. By applying expressive theories of law to privacy law for the first time, this Article deomonstrates how privacy intrusions help modulate and texture the status of groups in society. Furthermore, in the specific case of mass surveillance, expressive intrusions can alter the relative status of citizens and the government. The Article ends by providing a range of remedies, varying from ending the intrusion to (counterintuitively) making the intrusion routine or secret