Intellectual Privacy: Rethinking Civil Liberties in the Digital Age

Privacy and Security, Internet and Intellectual Property

Article Snapshot


Neil Richards


Oxford University Press, 2015


Values like privacy and free speech must keep pace with the digital age. Surveillance of thinking, reading, and communications threatens free speech. Rules to protect intellectual privacy would support free speech.

Policy Relevance

Information about reading habits and private messages should be kept confidential. Policymakers should have the option to regulate data held by private or public organizations.

Main Points

  • Traditional invasion of privacy torts present conflicts between privacy and free speech.
    • Free speech rights do not protect invasions into private spaces like the home.
    • Free speech rights protect disclosures by the press even when emotionally distressing.
    • Courts should not have the power to supervise the press.
  • Privacy rules targeting invasions of private space will not protect electronic messages, because data flowing over networks is not “private” in the traditional sense.
  • Intellectual privacy includes freedom of thought, the right to read freely, and the right to communicate in confidence.
    • Intellectual privacy is vital to freedom of speech.
    • Records like web searches and email are sensitive and should be kept confidential.
  • Despite the Supreme Court’s decision in Sorrell v. IMS Health, when data is sold as a commodity, it should not be considered “speech” protected by the first amendment. Democratic societies should have the option to treat data differently than dissent.
  • Fair information Principles do not restrict the flow of data or menace the free press.
    • Fair information principles prevent harms before they occur, unlike privacy torts.
    • The “right to be forgotten” could threaten the press if written too broadly.
  • Intermediaries such as Facebook and Twitter shape our free speech and intellectual life. They should act as if bound by the first amendment even when they are not.


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