State and federal action in privacy law is surging. But much of the new activity is more of the same old: an emphasis on individual choice and narrowly confined rights coupled with silence as to the dispersed, corrosive effects to social welfare that can be brought about by privacy-invasive technology. Privacy law needs a drastic and imaginative shift, and we propose one: understanding privacy as a matter of public health.

This work builds a case for learning from public health and possibly treating privacy within the valence of public health. We demonstrate that both fields face similar conceptual challenges in addressing fuzzily contoured but widely corrosive harms associated with highly prevalent consumer products. We present case studies of three significant social crises addressed by public health in the past: tobacco, processed foods, and opioids, and demonstrate many stark similarities between these three crises and ongoing discontent with digital privacy. Finally, we distill these commonalities and explore how privacy law can learn from the past successes and failures of public health. We close with a provocation: might privacy be better addressed as a matter of public health rather than of consumer welfare?