Julia Keller | 77 Vand. L. Rev. 169

Always-listening devices have sparked new concerns about privacy while evading regulation, but a potential solution has existed for hundreds of years: public nuisance.

Public nuisance has been stretched to serve as a basis of liability for some of the most prominent cases of modern mass-tort litigation, such as suits against opioid and tobacco manufacturers for creating products that endanger public health. While targeting conduct that arguably interferes with a right common to the public, this use of public nuisance extends far beyond the original understanding of the doctrine. Public nuisance has not been applied, however, to another prominent contemporary issue: privacy violations by always- listening devices. Plaintiffs have sued Google, Amazon, and Apple for their smart devices that listen and record snippets of conversations. But not one of these cases cites public-nuisance law as a basis for liability, even though the underlying wrong—eavesdropping—was one of the categories of conduct that fell within the earliest definitions of public nuisance.

This Article explores the history of eavesdropping as a public nuisance at common law and throughout U.S. history. It explains the public nature of the wrong underlying eavesdropping and why actions that invade individuals’ privacy should be understood as wrongs against the public at large. It then applies public-nuisance law to always-listening devices, arguing that public nuisance could serve as a basis for addressing privacy issues arising from modern technology or as a common-law analogue to make intangible privacy harms justiciable in federal court.

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AUTHOR:

Julia Keller