Privacy in cyberspace: constructing a model of privacy for the electronic communications environment.

AuthorByford, Katrin Schatz
  1. INTRODUCTION

    Ever since Samuel D. Warren and Louis D. Brandeis published their seminal article on the fight to privacy more than a century ago,(1) the contours of privacy both as a moral-philosophical concept and as a legal fight have been subject to persistent scholarly scrutiny and debate. At no time have privacy issues taken on greater significance than in recent years, as technological developments have led to the emergence of an "information society" capable of gathering, storing, and disseminating increasing amounts of data about individual citizens. Whether the collection and subsequent use of this information should be regulated and controlled, and, if so, what regulatory mechanisms should be created, are hotly contested issues within the legal community, as well as in the public and media.

    Despite the importance attributed to privacy by the general public and many legal scholars, a unified theory of privacy, whether legal or philosophical in nature, has yet to emerge. For Warren and Brandeis, the fight to privacy represented simply the "right to be left alone,"(2) which in 1890 translated into restrictions on the freedom of the press. Over the past century, the "right to be left alone" has developed into four separate common law privacy torts which provide individuals with certain limited protections.(3) Constitutional privacy law, by comparison, has come to focus on limiting the scope of governmental intrusion into a person's private life and personal decision-making.(4) Isolated pockets of privacy rights have also materialized as both state and federal lawmakers have placed various narrowly delimited restrictions on the ability of governmental and private organizations to gather, maintain, and distribute personal information.(5) Statutory and decisional privacy law alike have developed in an erratic and haphazard fashion; no single theory of privacy, nor even a consistent set of theories, has informed this process. Thus, Dean Prosser's remark more than thirty years ago that the rise of common law privacy has gone on "without any plan, without much realization of what is happening or its significance, and without any consideration of its dangers,"(6) continues to hold true today and aptly characterizes the evolution of privacy law as a whole.

    Yet, the need for some measure of uniformity in legal privacy theory and privacy law has never been greater. Privacy issues arise with increasing frequency in such diverse areas as media coverage of personal or quasi-public matters,(7) electronic surveillance in the workplace, and data collection by banks, credit bureaus, and other institutions. One area in which such privacy debate is now beginning to take shape is the emergent world of electronic communications networks. This article focuses on privacy issues relating to electronic communication networks where the tension between individual privacy rights and commercial interests in free information access is coming sharply into focus.

    The article rests on the premise that a body of privacy law which develops without the benefit of a unified theory of privacy will prove questionable at best. Only by deciding a priori what it is that matters about privacy, and by establishing a comprehensive set of policy guidelines will we be able to adapt our privacy laws to a rapidly changing socioeconomic context. This article draws on philosophy and social science research in an effort to develop a theory of privacy that may inform the development of a legal right to privacy in the newly emerging social order of electronic networks.

    Part II of this article seeks to construct a theoretical model of privacy which incorporates privacy's moral value and its broader social function and meaning. That model conceives of privacy not merely as a means of enabling the individual to create and maintain a coherent self-construct, but also as a foundation for negotiating the content of social relationships and for distributing social and political power.

    Part III examines privacy from a socio-historical perspective, to demonstrate that the Western concept of privacy is based on cultural notions of property and territoriality.

    Part IV applies the privacy model to the world of cyberspace. Specifically, this article argues that cyberspace should be regarded not merely as a technological innovation facilitating communication but also as a cultural sphere characterized by distinct forms of social organization and rules of interaction. The unique social and geopolitical structure of the electronic communications environment weighs against reliance on traditional assumptions about the nature of privacy and requires us to take a fresh approach to privacy rights which will limit others' ability to engage in surveillance and information gathering.

    Part VI hence examines the reasons for extending privacy rights to cyberspace communications and discusses probable consequences of privacy deprivation. Those consequences are made comprehensible by the theoretical privacy model developed in prior sections, which regards privacy as a means both of maintaining individual personhood and of constructing interpersonal relationships. The author contends that the unregulated collection of commercial data engenders alienation because it deprives the individual of control over access to his personal information. Nonregulation also allows those who collect and deal in information to accumulate social power at the expense of the individual, a process which ultimately could inhibit the development of political democracy in cyberspace.

    Finally, Part V proffers some suggestions for cyberspace privacy regulation. As various authors have noted, existing regulations aimed at addressing privacy concerns in the context of electronic communications are inadequate. This article also critically examines the idea that a regulatory framework should be permitted to develop gradually, either by relying on the self-governance of network communities or by allowing privacy safeguards to emerge through contractual means. Neither alternative recognizes the power disparities between individual network users and information brokers. Moreover, neither alternative presents an effective means of creating a uniform and coherent approach to cyberspace privacy rights. Instead, this article argues for the establishment of a federal regulatory mechanism as a vehicle for developing a coherent privacy framework that is adapted to the specific contingencies of an electronic communications environment.

  2. CONSTRUCTING A THEORETICAL CONCEPT OF PRIVACY

    As previously noted, there is little consistency among the various legal approaches to privacy issues. Statutory, common law, and constitutional privacy rights rest on diverse assumptions about the nature and purposes of privacy. These assumptions are not usually considered by judges, lawmakers, and commentators, who are more concerned with the practical consequences of privacy jurisprudence than with its theoretical underpinnings. At the same time, privacy theorists are typically inclined to regard privacy not as a right but as a philosophical construct with moral, social and cultural--but not necessarily legal--dimensions. As a consequence of these marked differences in emphasis, scholarly discussions of privacy, whether theoretical or legal in nature, only rarely focus on the nexus between privacy theory and privacy law. This article attempts to fill that exploratory gap by constructing a conceptual bridge between moral philosophy, social science theory, and legal analysis.

    Such an endeavor is not intended to be merely an academic exercise. Rather, it is grounded in the presumption that, as our rapidly changing socioeconomic environment requires us to re-think present approaches to the right of privacy in numerous social contexts. Consequently, it becomes increasingly necessary to fashion a coherent body of privacy law that may be adapted and molded to fit a wide variety of different factual settings. That body of law can be defended only if it is anchored by a well-understood and definable theoretical framework. Nowhere is the need for a consistent privacy theory more acutely felt than in those areas where a clearly defined legal approach to privacy rights has yet to be developed. One such area is the sphere of electronic communications and, in particular, cyberspace. Later sections of this article discuss in some detail the specific cultural contours of the cyberworld. For present purposes, it suffices to note that cyberspace may be characterized as a wholly novel cultural setting within which specific social, political, and economic structures are only now evolving. As this nascent cultural space takes shape, it will become increasingly necessary to define the rights of those who reside within it and to safeguard those rights with appropriate regulations.

    Such a regulatory model must derive its shape and meaning from a theoretical framework which takes account of privacy as a moral value and as a social construct. This part, therefore, explores privacy from the dual viewpoints of moral philosophy and social science in order to construct a privacy model that ties privacy to both the maintenance of self and person and to the pro-cesses by which we create social relations and negotiate social power. The privacy theory developed below is grounded in the moral-philosophical perspectives on privacy propounded by Stanley Benn and Ferdinand Schoeman, but also closely examines the socio-cultural meanings and implications of the privacy construct as it operates within the Western, post-industrial cultural context.

    1. A Value Theory of Privacy

      This article presents a theoretical approach to privacy which rests on the presumption that privacy within present-day Western society is imbued with an inherently positive value. This theoretical approach also seeks to explain privacy's value in terms of the specific roles that privacy plays...

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