Plotting Privacy as Intimacy

Abstract

This Article introduces a two-dimensional Venn diagram on which to plot and evaluate a subset of privacy law decisions. In each plotted case, the general question was whether a person’s action should be afforded legal protection as private. How the court answered that question can be explained by examining whether the specific facts of the case fall within or outside two circles of intimacy. One circle represents the intimacy of the space in which the action occurs. This spatial intimacy is based primarily on the proximity of the identified space to a secluded area of the home. Within the other circle is bodily intimacy, which depends largely on the physically intimate nature of the act itself, i.e., how closely connected the act is to one’s own intimate body parts or innermost thoughts. When the facts of a single case are contained within the overlap of both circles of intimacy, legal privacy protection should be at its highest level. Plotting cases based on spatial intimacy and bodily intimacy is useful in at least three other ways. First, the plot helps to explain why certain cases are relatively easy for courts to decide and, conversely, why other cases are more difficult. Second, by focusing on the two types of intimacy, one can reconcile certain privacy decisions that initially appear contradictory. Third, the intimacy plot supports, and is supported by, recent scholarly calls to unify privacy law by focusing on “offensiveness.”Ultimately, plotting privacy cases based on their intimacy-dependent facts illustrates how intimacy likely should be one of the core interests that privacy law has aimed to, and should aim to, protect.