Page 40 - Privacy in a Cyber Age Policy and Practice

MORE COHERENT, LESS SUBJECTIVE, AND OPERATIONAL 25

B. Operationalization of the Key Principles

1. Key Considerations

Before proceeding to specify the CAPD, it is necessary to outline a few
major considerations that underlie the endeavor. First, during a discus-
sion of the original paper, several colleagues asked whether the suggested
doctrine is a proposed means of interpreting the Constitution or a frame-
work for passing legislation and formulating public policy. They inquired
whether the CAPD is a means of interpreting the Fourth Amendment or a
public policy model. After all, as these legal scholars pointed out, a world
of difference exists between the former, which deals with the courts, exist-
ing case law, and the ways in which judges deliberate, and the latter, which
involves the democratic processes of the legislature. 34
While there are indeed significant differences between these two insti-
tutions, the CAPD is an articulation of normative principles that apply to
and affect both. That changes to normative precepts affect both institutions
is highlighted by developments in other arenas. In the wake of changes
to the United States’ moral culture precipitated by the civil rights move-
ment, the Supreme Court overturned Plessy v. Ferguson in the landmark
case Brown v. Board of Education, and Congress passed the Voting Rights
Act of 1965. Recent changes to the moral culture, in which libertarian prin-
ciples led some to take similar positions to those held by liberals regarding
same-gender marriage, have led to court cases, most notably United States
35
v. Windsor, in which the Court ruled that interpreting the words “mar-
riage” and “spouse” to apply only to heterosexual couples violates the Due
Process Clause. This decision was followed by legislation by various states.
Furthermore, the same moral shift has led to changes in federal adminis-
trative rules regarding the extension of tax and other benefits of marriage
to same-gender couples. A similar sea change must now take place with
respect to the normative conceptualizations of privacy and its application
by the courts and legislatures. Several preliminary steps in this transforma-
tion are outlined below.
Second, an important thesis underlying the following is that as a privacy
doctrine is adapted to the grand transformation of information from the
paper age to the cyber age, society can become more tolerant of spot collec-
tion of personal information if at the same time it becomes more restrictive
of secondary usages—that is, if it restricts cybernation of the information
collected—without suffering a net increase in privacy violations. This is
true of all circumstances except for limited conditions, such as the arrival
of a tyrant. There is an inverse relationship between the two elements: The