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88 S. Cal. L. Rev. 1125 (2014-2015)
Sensitive Information

handle is hein.journals/scal88 and id is 1191 raw text is: 


                                PAUL OHM*

     Almost  every information privacy law provides  special protection for
certain  categories of  sensitive information,  such as  health, sex, or
financial  information. Even   though  this approach   is widespread,  the
concept  of sensitive information  is woefully undertheorized.  What  is it
about  these categories that deserves special protection? This Article offers
an  extended examination  of this question. It surveys dozens of laws and
regulations to develop a multi-factor test for sensitivity.
     From   this survey, the Article concludes that sensitive information is
connected  to privacy harms  affecting individuals. Consistent with this, at
least for the case  of privacy in large databases,  it recommends   a new
threat modeling  approach   to assessing the risk of harm in privacy law,
borrowing  from the computer  security literature. Applying this approach, it
concludes  that we  should create new  laws  recognizing the sensitivity of
currently unprotected forms of information-most   importantly, geolocation
and  some  forms  of  metadata-because they present significant risk of
privacy harm.

                         TABLE   OF  CONTENTS
INTRODUCTION                .................................... .....1127
       A. SENSITIVE  INFORMATION       ...........................1132

     *  Professor, Georgetown University Law Center, and Faculty Director, Center on Privacy and
Technology. I thank workshop participants at the Privacy Law Scholars Conference and the
Georgetown University Law Center. Thanks in particular to Danielle Citron, Julie Cohen, Allan
Friedman, Dorothy Glancy, James Grimmelmann, Deven McGraw, Helen Nissenbaum, Joel
Reidenberg, Stuart Shapiro, Peter Swire, and Dan Solove. Thanks also to Chelsea Brooks, Arielle
Brown, and Kurtis Zinger for their fine research assistance.


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