Page 41 - Privacy in a Cyber Age Policy and Practice

26 PRIVACY IN A CYBER AGE

less cybernation, the more primary collection is possible without causing
an increase in privacy violations. The more cybernation is allowed, the less
collection can be tolerated if the demands of the common good do not call
for a net increase in intrusions. 36
Third, the challenge my colleagues posed when asking me to specify
the new doctrine is completely justified, indeed essential, if the courts
and legislatures are to apply this doctrine. However, the law often func-
tions without taking definitions to the third decimal point and by leav-
ing much interpretation to the discretion of law enforcement authorities,
lower courts, and regulators. For example, in cases of drunk driving, the
moment a suspect has actually been taken into custody and must be read
37
her Miranda rights seems to remain unclear. The Bill of Rights defines
the right of a U.S. citizen to be tried by an “impartial” jury rather than
merely a judge in criminal cases; however, the definition of “impartial”
38
is far from specified. These examples illustrate that the courts function
more or less effectively without excessive precision. In short, specifica-
tion is essential, but the law functions quite well without carrying it to
the level demanded by the sciences. This is particularly the case given
that, to reiterate, only a first approximation of the new doctrine is here
attempted.
Above all, this chapter will attempt to show that the CAPD is more
coherent and less subjective than the prevailing doctrines.

2. The Three Dimensions of the Cyber Age Privacy Doctrine “Cube”

The new doctrine draws on three principal criteria: the volume, level of
sensitivity, and degree of cybernation of information collected. Together,
these dimensions form a cube; a conceptualization that contrasts with the
idea of information collection as a “mosaic.” 39

i. Volume
Volume concerns the total amount of information collected about a person
by one agency or actor. The measurement refers to one agency or actor
because the law should differentiate between that which one agent may
collect and that which may be collected in total by multiple agents. The
law may greatly limit, for example, the information a health inspector, an
OSHA specialist, or an IRS agent may individually collect about a given
restaurant—but the total amount they and others are allowed to collect will
obviously be much more extensive.
This dimension of the CAPD is relatively easy to operationalize, and it
encompasses two components. The first of these is quantity, which simply
concerns the amount of information collected, whether this is measured