12 Colo. Tech. L. J. 361 (2014)
“Exceptionalism” refers to the belief that a person, place, or thing is qualitatively different from others in the same basic category. Thus, some have spoken of America’s exceptionalism as a nation. Early debates about the Internet focused on the prospect that existing laws and institutions would prove inadequate to govern the new medium of cyberspace. Scholars have made similar claims about other areas of law.
The focus of this short essay is the supposed exceptionalism of privacy. Rather than catalogue all the ways that privacy might differ from other concepts or areas of study, I intend to focus on the narrow but important issue of harm. I will argue that courts and some scholars require a showing of harm in privacy out of proportion with other areas of law. Many also assume, counterintuitively, that the information industry somehow differs from virtually every other industry in generating no real externalities.