Technology Mindfulness and the Future of the Tort of Privacy

This article investigates how to develop the tort of privacy to better address technology-facilitated abuse. The central question explored is how explicitly the role and function of technology should be engaged in a legal test. The article argues that technology is constitutive of our society, shaping our social and cultural institutions, which in turn shape the development of technology and together define the everyday ways that our privacy is enjoyed and invaded. A privacy tort should therefore directly engage with the social significance of technology—what this article frames as technology mindfulness. To develop the concept of technology mindfulness, and with the goal of law reform, the article is structured in three parts. In the first part, the current privacy torts are critically analyzed to identify their lack of suitability to address evolving technologies and abuse. In the second part, the article grapples with how to examine technology in a tort, wrestling with the tension between the value of technology neutrality in law making and the need for a technology-mindful lens. In this part, the features of a technology-mindful law are outlined. In the final part, a new tort is sketched, drawing from constitutional principles. The goal is to illustrate how to embed technology mindfulness and overcome some of the weaknesses of current law.