Algorithms and the Privacy Torts

Abstract Drawing on recent consumer privacy litigation, this work identifies three recurring doctrinal questions that arise from the interaction between algorithmic activity and privacy tort claims. First, can algorithmic conduct give rise to liability under privacy torts, particularly where intentional conduct is required? Second, can disclosing or holding out information or representations to algorithms fulfill publicity elements of the privacy torts? Third, is use of an algorithm per se offensive or will offensiveness be judged contextually, as for human conduct? A survey of recent case law reveals that courts generally accept algorithmic conduct as sufficient to perpetrate a tortious act – whether intrusion, disclosure, or publication, but they show more skepticism when algorithms are posited as the audience necessary to fulfill a publicity element. Put differently, legally algorithms can act but not see . Further, algorithms are inherently neither aggravating nor mitigating factors as to offensiveness. This work contributes to the growing literature on tort liability and artificial intelligence by surfacing a neglected body of case law in which courts have already long engaged with algorithmic conduct. These privacy torts decisions suggest that AI tort liability is emerging incrementally and contextually. The privacy torts can serve as an informative barometer for likely judicial treatment of future algorithmic use cases.