This Article suggests that we would benefit if we would protect privacy by sometimes requiring tactful inattention by potential users rather than total secrecy by the target. That is, some legal privacy protections should stop emphasizing secrecy and instead emphasize the appropriate uses of personally identifiable and often sensitive information by gelling tactful inattention into legal standards. Culturally, such an expansion may be difficult, as we tend to a “finders-keepers” attitude towards data. However, given technology’s ability to dissolve routine barriers, if we require others to leave some information out of some equations, we may be able to retain the personal flourishing that privacy promotes, without unduly impairing the information needs of others.
Not only has the tactful inattention paradigm already existed in some traditional areas of law, but it also has occurred in some new laws in specific areas of recent concern. Part I discusses the benefits to flourishing that privacy provides, both individually and within relationships. Part II describes the development of the tactful inattention paradigm in various areas of law. Part III suggests two specific areas that might benefit from a paradigm of tactful inattention: the use of certain behavioral information by employers to screen applicants and employees, and the use of similar information by political campaigns and vendors to target behavioral advertising and for vendors, micro-target pricing. Finally, Part IV describes the benefits of a tactful inattention approach to privacy in the digital age.