Harry Surden

Document Type



SMU Law Review




This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. Latent structural constraints, by contrast, are the secondary costs arising from the technological state of the world which implicitly regulate conduct by making certain activities too difficult to engage in on a widespread basis.

Society relies upon these latent structural constraints to reliably inhibit certain unwanted conduct in a way that is functionally comparable to its use of law. For example, society has frequently depended upon the search costs involved in aggregating and analyzing large amounts of information to effectively protect anonymity. The operation of these latent structural constraints is often implicit and therefore non-obvious to policymakers. This focus on implicit, rights-like relationships which are protected by nonlegal constraints becomes significant because latent structural constraints are vulnerable to sudden dissipation due to emerging technologies. This Essay describes a conceptual framework by which policymakers can explore this association between constrained behavior and latent structural constraints and suggests that they employ this conceptualization in order to identify non-obvious privacy interests which may be threatened by emerging technologies.