Dean & Schmoker Professor of Law, University of Nebraska College of Law. My thinking on this topic has changed considerably based on feedback I received during presentations at the University of Nebraska and LSU. I received especially valuable comments from Bill Corbett, Rick Edwards, John Gradwohl, Christine Jolls, Richard Moberly, Ramona Paetzold, Bob Schopp, Jane Willborn and Bob Works. I would also like to thank the editors of the Louisiana Law Review for the invitation that gave me cause to focus on this interesting issue, and especially Sandra K. Varnado who did a spectacular job in organizing this symposium. Finally, Stacey Hines provided solid and valuable research assistance.
Privacy is about secrets. It protects our ability to keep important parts of our lives secret. But even more than secrecy, privacy is about autonomy. It protects our ability to choose which parts of our lives to disclose to others. You would invade my privacy if you analyzed my DNA, unless I gave you permission. You would invade my privacy if you examined my e-mails at work, unless I gave you permission. You would invade my privacy if you inquired too closely into my sexuality, unless I extended an invitation.
One way to think about this is to view consent as one of the key limits on privacy. There is much in modern life, and especially in modern work life, that is not private at all. But even within the fairly limited realm of what privacy ordinarily protects, the law will recognize less protection, if the individual agrees. The possibility of consent provides a second, individualized, and narrower limit to what the law protects as privacy.1
But the role of consent in privacy law is not merely, or evenly principally, to serve as a limit. Consent is also an integral part of what we understand privacy to be and one that makes important contributions to the value of privacy in modern society. Consent is a crucial component of privacy that empowers individuals and affirms human dignity. It is consent that permits us to receive and express intimacy. It is consent that regulates our respect for the privacy of others. It is consent that bestows on individuals, rather Page 976 than society, the power to draw the precise boundaries around their own privacy.2
Privacy does protect our secrets. But it functions primarily by allocating authority over those secrets to individuals. Individuals can continue to protect those secrets, or they can consent to their release. Both privacy-as-secrets and consent mediate the boundary between society and the individual. But consent, even more than the concept of privacy-as-secrets, bows to the complexities of modern life and affirms the power of individuals to shape their own identities, their own lives.
The importance of consent in privacy law creates special problems in the workplace. Everyone agrees that consent is a difficult and compromised concept in employment law, although the reasons vary. Some couch the problems in the rhetoric of power: employee consent is suspect because employees are weak.3Others talk about various types of market imperfections that compromise employee consent, such as asymmetric information or free rider issues.4 Still others point to behavioral biases and heuristics that taint employee consent.5 But the bottom line is the same: consent within the employment relationship is compromised and must be regarded with at least some skepticism.
Thus, the tension that is the subject of this article. On the one hand, consent is central to privacy in fundamental ways. On the other hand, consent in the workplace is suspect and compromised.
I will begin in Section I by discussing in more detail the central role of consent in American privacy law. In Section II, I will analyze the current state of the law on employee consent to privacy violations. In Section III, I will suggest several guidelines for thinking about the appropriate role for employee consent.Page 977
Ruth Gavison provides a useful starting point for thinking about privacy and consent. In a pathbreaking article, she identified accessibility as the key element of privacy. Thus, perfect privacy would exist when there was absolutely no accessibility: when no one has any information about a person (secrecy), no one pays any attention to her (anonymity), and no one has physical access to her (solitude).6
This is a useful starting point because it captures the situations we associate with privacy and excludes others that might fall within alternative definitions. Thus, the definition is sufficiently broad to cover the situations I describe in the next section which invoke privacy concerns. Having information about another's DNA or HIV status raises concern about secrecy, while seeing Steve Willborn without clothes (yes, that is about to come) would raise concern about both anonymity and solitude. At the same time, Gavison's definition is sufficiently narrow and precise to exclude situations that might be covered by other, too-broad definitions. Thus, as Gavison points out, thinking of privacy as "being let alone" would cover things like requiring people to pay taxes or join the army.7 Situations like these may well raise issues relating to freedom and liberty, but they do not fit very well into common or legal conceptions of privacy invasions.
Perfect privacy is, obviously, not a very desirable state. Neither would its converse¾a state of perfect lack of privacy¾be very desirable. We know from their reaction to paparazzi that even the most public and publicity-craving people do not relish situations in which everything is known about them (no secrecy), everything they do is known (no anonymity), and they are constantly observed (no solitude).8 The interesting questions arise between these two states when we attempt to identify the precise points on this continuum where the law ought to provide protection. (Figure 1) One contested place on the continuum identifies social protection of privacy. At what point, absent consent, would the law provide protection? The answer to this question will vary depending on the particular type of privacy (sexual, medical, educational records), the particular reasons for Page 978 thinking that privacy might be warranted (freedom from ridicule, promoting autonomy, promoting civility), the particular category of privacy invasion at issue (intrusion on seclusion or solitude, public disclosure of private facts, false light, appropriation), the particular culture for which the rules are developed, and many other factors. The bulk of the literature on privacy discusses the location of this point.9 This is an interesting issue, of course, but not the topic of this paper. This paper accepts the point of social protection wherever it might be.
[FIGURE IS NOT INCLUDED]
The topic of this paper is about the space to the left of this point.10 Thus, the paper assumes that there is presumptive social protection for the privacy at issue. But just what is it that is protected in that space? It is almost always incorrect to think that there is something in that space that is so secret that society forbids its disclosure.11 Instead, what is protected in the space is the Page 979 authority of the individual to determine whether disclosure is permitted:
The root idea of privacy is that of a privileged territory or domain in which an individual person has the exclusive authority of determining whether another may enter, and if so, when and for how long, and under what conditions. Within this area, the individual person is¾pick your metaphor¾boss, sovereign, owner.12Thus, privacy and consent are intimately connected. Within the domain protected by privacy, the thing that is protected is precisely the individual's authority to consent or to withhold consent. This concept of privacy protects human dignity in either case.13 The ability to consent, the necessity of consent, empowers individuals to express and invite intimacy in a way not possible if the information were freely available. Protection when consent is withheld affirms society's respect for an individual's control over central aspects of his own existence.14 Thus, privacy enhances an individual's ability to express and invite intimacy, while maintaining respect for his authority to maintain secrets. It is consent that regulates these dual functions of privacy and that allocates to the individual authority over the precise function privacy is to play.15
This connection between privacy and consent has consequences for the language we use. The concept of waiver, for example, seems ill-suited to the task. It would be odd in many circumstances (for example, invitations to intimacy) to think of the situation as one where a privacy violation has occurred, but has been waived. Quite the contrary. When individuals consent in privacy situations, they are not waiving a right, but instead they are exercising the central right protected by privacy, the authority to Page 980 decide. Similarly, contract terms such as consideration and modification seem out of place. It would be odd to think of consent as some type of contract modification requiring consideration when there was no contract in the first place, but rather a type of social protection that can be affected by contract but does not depend on contract for its existence or enforcement.16Once again, consent is the exercise of an authority protected by tort law, not part of an independent agreement between the parties.17
Viewed in this way, the issue of consent in employment settings becomes both more salient and more problematic. If our willingness to credit employee...