Privacy in Cyberspace: Constructing a Model of Privacy for the Electronic Communications Environment

Abstract

I. 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 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 to be left alone,(2) which in 1890 translated into restrictions on the freedom of the press. Over the past century, the 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 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. …