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Until recently, “privacy” jurisprudence was limited to a manageable number of discrete topics. In the civil context, “privacy law” referred to the four common law privacy torts: intrusion on seclusion, public disclosure of private facts, false light publicity, and misappropriation of publicity rights. In the criminal context, privacy law referred to the “reasonable expectation of privacy” standard that constrains the government’s search powers under the Fourth Amendment or to the infamous First Amendment “penumbra” of privacy first recognized in Griswold v. Connecticut. In each of these contexts (except misappropriation of publicity rights), the legal analysis turns on the expectations or reactions of a hypothetical “reasonable person” — in the tort context, whether a reasonable person would be offended; in the Constitutional context, whether a reasonable person would have an expectation of privacy in the circumstances at hand. Indeed, the reasonable person standard is so pervasive in pre-Internet privacy jurisprudence that its extirpation would leave the entire area of law largely devoid of a conceptual framework.

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