[Q]uasi-property provides the essential model for assessing the interest held by a privacy claimant against a defendant, and whether it has been infringed. The quasi-property model can account for the four privacy torts first advanced by William Prosser and adopted as law in the vast majority of states, and liberate them from the ossification that have stunted their development and ability to adapt to modern conditions. What’s more, the approach has implications for developing privacy rules for enforcement by other actors, such as administrative agencies, and even in conceptualizing other areas of privacy law outside of tort law, such as Fourth Amendment jurisprudence.
Henry's project is an explicit response to Pamela Samuelson's rejection of privacy as intellectual property. It reminds me of Mark Lemley's move in arguing that trade secrets should be treated as a form of intellectual property right rather than as subjects of contract and tort claims. But Henry's reliance on the quasi-property model, and her careful application of Shyam Balganesh's recent work revitalizing this paradigm, is more refined in its treatment of property theory. Recommend.
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