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Privacy as the Principle Organizing Legal Concept of the Future

Presented by Tracy Mitrano
Privacy Symposium, Harvard University, August 2008

In March of 2006, the Associate Registrar called me and said, "What are you going to do about Facebook!?" After laughing at the thought that I could do anything about youth's behavior or a .com, what she meant finally dawned on me: Couldn't I help students understand the risks and potential liabilities of unabashed personal disclosure on this hot new social networking site? So one typically dreary spring Saturday in Central New York I wrote Thoughts on Facebook, an informal primer on what the students might want to think about when they engage in social networking. This primer focused on three points: physical safety in a virtual world, Internet caching technology and a reality check on the accessibility of the site by older people in positions of authority who can make decisions about a young person's life: judicial administrators, loan officers, insurance adjusters, professors and future employers. That was in the old days when Facebook creators restricted it to Ivy League Schools. We know now that social networking sites vie for market share, if not hegemony, of the whole Internet world. The challenges of personal identity and representation, physical and financial security, indeed the entirety of an individual's identity online has risen to the fore of the kind of concerns that we gathered here today to address. So here is my thesis: Privacy is to this era what rights were to the modern political world of the 18th Century: the central legal organizing principle for our future.

Rights, in one form or another, stretch back throughout Western history. The Ancient Greeks and Romans conceived of them as political power for citizens. Christians universalized an ethical concept that extended to all humans. The 13th Century Magna Charta signaled modification of centralized authority. Locke believed rights derived from the ownership of property. Jefferson considered them "inalienable" for the pursuit of happiness while back on the continent Kant thought that they emerged through the exercise of reason.

Our common law tradition mixes and matches these notions. In the early twentieth century, fundamental rights included parental school choice and state prohibition to castrate even the most heinous criminals without consent. The second half witnessed the free exercise of sexuality. As we know, women, racial, religious and ethnic minorities enjoy various constitutional protections against discrimination. It is important to remember that these concepts all operate on the foundation of a "negative" rights regime, that is, what a government cannot do to an individual without, for example, probable cause to search their home or impose a time, place and manner restriction on speech. Socialist countries, and to some degree continental Western European, have moved toward a positive rights regime, whereby the government must provide services. In other words, a concept of "rights" has been mined by the ages to address any number of theories of who owes what to whom in the social order.

"Privacy" has long been interwoven into the rights rhetoric. In ancient times rights conferred on citizens of Greece or Rome a protection of their family from public spaces. "Privates" in Latin means, "not belonging to the state" or "not in public life" and tracks well the contemporary Warren and Brandeis notion of being "let alone." As we move rapidly into a global information economy, privacy in the current U. S. law applies to a small class of torts, public laws over certain kinds of information, sexual liberties and electronic surveillance rules. "Privacy" may expand, however, to become the ideological, cultural and legal basis upon which an international society defines an individual's relationship to other people, corporate entities, and governments. Privacy has risen to the fore of our attention, if not to the rarefied heights of political theory, because of the marketing capabilities of advanced computing technologies to mine, refine and redesign data to shape consumer behavior; because of users' dynamic experience to contribute content inevitably disclosing of themselves in very personal ways, and because of how completely inadequate current law is to address the conflicts that emerge as a result of this rapid change. Photography was the impetus behind Warren and Brandeis' original notion of privacy torts and it is no wonder that technology has prompted this new and even greater explosion. We require a new vocabulary, to render relationships and responsibilities relevant, meaningful and appropriate for the contemporary world.

In this conference you have already heard so much about HIPAA, FERPA, Graham-Leach Bliley, European Directions and the United States' sorry state with respect to information privacy laws that are a patchwork but no quilt. In this session we will hear about the importance of educating youth on appropriate uses of the Internet and how the smart social networking sites balance users' expectations with the bottom line, often crafting new expectations and social norms in the process. We live in a global information economy but we do not have a coherent legal rubric for information about individuals. Information about individuals — not that smaller set, "personally identifiable information" of the financial transaction kind, but a broader yet-to-be-defined concept of information about an individual and possibly even groups or self-defined communities of people — falls between the cracks of legal rubrics for physical and intellectual property. Do people "own" their own information? What rights, if any, do individuals or groups have to information related to or about them in relation to data collection companies, advertisers, governments or other corporate entities including on-line sites to which the user contributes content? Privacy policy sites and fair information practices constitute a start but they hardly offer the foundation for something more trenchant required by our society to vest traditions, values and rules that will preserve and protect ineluctable qualities of privacy in this dynamic electronic world. Or at least, I think so. The physical property regime offers hints but is not the right fit and the Internet has already called into question so much of our current intellectual property regime as to make it unstable ground for the formulation of concepts so personal and, frankly, so critical to our ability to utilize information technologies in ways that enhance the human experience rather than allowing technology to be the tool of people who use it for exploitative ends. Necessarily a coherent concept of privacy will draw on both "negative" and "positive" concept of rights, and if developed comprehensively, it should integrate those notions seamlessly.

I would like to close with three observations. First, the Internet is a historical phenomenon easily comparable to the printing press. Notice I did not say technology, but phenomenon, because it is not the packet-switching discovery or the router or servers or the fiber-optic cables, TCP/IP protocols or hypertext but the whole interactive process that includes social norms, market influences, laws and technology. History provides many lessons about these kinds of complicated relationships and can serve as a guide to addressing contemporary challenges. For example, that privacy as a concept was historically assumed but not labeled as a legal right — for example, the oft-heard refrain that prior to penumbra jurisprudence constitutional law did not include the word "privacy" — might suggest that the very act of labeling it signals a diminution of its qualities in our contemporary existence rather than what most people (or at least Originalists) assume that historically no one had it because no one named it. It might not have needed a trumpeted legal name because its unheralded qualities were within the expectations of social norms and not in jeopardy until more recent, technologically driven times.

Second, the Internet affords us a relatively rare opportunity to watch anew what is otherwise ignored, repressed or forgotten: the dynamics behind the formation of communities, the definition of identity and its fluidity especially in times of rapid social change. What is a source of anxiety for some people — OMG! Look what kids are doing on-line! — might be useful instruction about psychosocial development if we understand that in the scope of evolutionary time technology does not change human nature, it reshapes behavior. When we think we are learning something new about "the Internet" we should ask whether what interests us is the mirror that it provides to ourselves. And if so, in whose image have we made it and what do we see?

Finally, to become conscious of how global society might leverage privacy as a conceptual means to negotiate relationships creates an opportunity to frame policy issues in the context of larger justice principles. Because it is intrusive on the person and almost by definition disruptive to existing norms, technology inevitably jostles the psychological, physical and virtual spaces in which we live. Privacy — that place outside of the polis and protective of the ineffable spark of individuality — is the obvious and logical concept around which we can begin a meaningful reinterpretation of ordered liberty. It most certainly begins with digital literacy education at the earliest levels of our schooling that should have as its overarching theme personal dignity and social fairness, and such themes would then necessarily require knowledge on the part of the user about the business models upon which the Internet operates: for example: why search engines or social networking sites are "free"? It will inevitably mean a change in laws. The easiest prediction is the harmonization of United States with developed countries on laws safeguarding personally identifiable information. The TBA laws are those that involve complex interaction among users, on-line entities and evolving social norms. How people around the world will determine how much they want to be known, contacted and represented by corporate entities, advertisers or even "friends" remains to be seen. Expect a larger cultural movement, one that takes the full measure of what it means to be human in the information economy and that keep the encroachments on that meaning at bay. Let it surprise no one that such a movement will be in the name of "privacy."