Page 51 - Privacy in a Cyber Age Policy and Practice

36 PRIVACY IN A CYBER AGE

way and demonstrated that the collections prevented a considerable num-
ber of significant terrorist attacks. That is, if the evidence instead showed
that the various acts by U.S. authorities that entailed privacy intrusions
served to abort many major terrorist attacks, most Americans would see
them as justifiable. In any case, the data clearly allow citizens and their
elected officials to assess threat levels, the value of countermeasures, and
the effectiveness of accountability.

3. Combined Considerations

The next step is to combine and apply the three key considerations.
One may argue that such an application of the CAPD reveals that this
is a much more complex doctrine than the expectation of privacy rule.
This is indeed a valid observation. However, given the explosive growth
of the role of information in our private and public lives, its complexity,
and the continued expansion of cybernation, a doctrine of privacy of
commensurate complexity seems unavoidable. Not all possible permu-
tations are reviewed here, as this chapter is merely a first attempt to
operationalize the CAPD; however, the main ones are considered on
a first approximation basis. Moreover, while one day it may well be pos-
sible to numerically score each of the elements of the cube, for the
preliminary purposes at hand it will suffice to evaluate each in terms of
“zones,” referring to each variable as “low” or “high.” In the process it
shall be seen that while the CAPD often leads to rulings and legislation
similar to those currently in place, in some cases it calls for reversing
the prevailing law. Moreover, in all cases the CAPD provides a rationale
for court rulings and legislation concerning privacy that is much less
subjective and much more systematic than the rationales now in place.
This is an audacious claim; however, it is one that is surprisingly easy
to document.
Only select sub-cubes are next examined, given that the application of
the approach to the other sub-cubes seems self-evident.

i. Low Volume, Low Sensitivity, No Cybernation
The CAPD holds that low volume, low sensitivity, noncybernated personal
information collection should be tolerated at the current level of common
good because the risks to privacy are low and the contributions to the com-
mon good engendered by such collection are very often middling to high.
(By “tolerated,” I mean that the law should allow such collection of infor-
mation unless there are specific reasons to object to it; the default should