Privacy and Identity in a Networked World

Privacy and Identity in a Networked World

Bradley T. Tennis (Yale Law School, USA)
DOI: 10.4018/978-1-60960-083-9.ch001
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Abstract

Digital information technologies have opened up fantastic new opportunities for ordinary people to both stand atop a virtual soapbox and reach millions and to participate in new forums for social interaction. However, as users conduct more and more of their personal and professional lives online, the distinction between public and private that has underlain the development of privacy law to date has begun to blur. While some traditional regulatory tools have proven adaptable, the ever increasing ability to collect and analyze that electronic information suggests that the assumptions and policy considerations underlying privacy laws must be reexamined. Old dividing lines between public and private forums cannot be readily transported into the digital realm. Instead, privacy regulations in the information age should protect the ability for users of online services to control the dissemination of their personal information and compartmentalize different aspects of their online conduct.
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Introduction

In 1946 Murray Leinster published a science fiction short story entitled A Logic Named Joe (Leinster, 1998). The eerily prescient story posits a society saturated by and utterly dependent on networked computers known as “logics.” Each logic is wired to a central data repository called “the tank,” containing the sum of human knowledge. One day a particular logic—the eponymous Joe—achieves sentience and undertakes to organize and correlate all the information in the tank. In the process, Joe reprograms the other logics so that they will not simply report facts or replay television programs: they will also answer any question posed to them by combining and analyzing information. For example, one user is given the recipe for a surefire remedy for inebriation; another is given precise instructions for disposing of a murder victim; still others are taught how to commit the perfect robbery. It is not long before the logic network is asked to locate a particular person and, in response, begins to collect and organize dossiers on everyone who uses it. Recognizing the peril of unlimited access to and correlation of information, the story’s protagonist finds and unplugs Joe, thus saving civilization.

Leinster’s story suggests a distinction between information that should be broadly accessible to the public and information that should not. Modern society has clearly drawn the line in a different place. For example, a quick Google search for “how to dispose of a body” turned up over seven million hits. These suggestions are not the product of the awesome correlative and deductive powers of Leinster's logic network, and so are presumably less likely to be unerringly correct, but it seems probable that helpful advice about corpse disposal is publicly available on the Internet. Nonetheless, the idea of a separation between public and private information has remained a key normative goal in the development of privacy policies and doctrines for over one hundred years. The idea is often traced to Samuel Warren and Louis Brandeis’s Harvard Law Review article advocating the creation of a tort for breach of privacy. Warren and Brandeis observed:

The design of the law must be to protect those persons with whose affairs the community has no legitimate concern, from being dragged into an undesirable and undesired publicity and to protect all persons, whatsoever; their position or station, from having matters which they may properly prefer to keep private, made public against their will (Warren & Brandeis, 1890, pp. 214-215).

The concept of public and private spheres has persisted and become the theoretical foundation on which modern privacy regulation is based. As an increasing portion of personal life is mediated and, just as importantly, recorded by digital technologies, the practical distinctions between what is public and what is private have begun to blur. This tension has not gone unnoticed: many commentators have noted that traditional regulatory tools have proven difficult to apply in light of the incredible ease of generating, sharing, copying, transforming, and accessing digital information (Samuelson, 2000; Solove, 2001; Zittrain, 2008).

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