Page 62 - Privacy in a Cyber Age Policy and Practice

MORE COHERENT, LESS SUBJECTIVE, AND OPERATIONAL 47

best addressed not by ceasing collection and storage, but by building up the
foundations of civil society, public education, and voluntary associations
and by ensuring that public goods are provided. The greatest threats to
democracy have historically arisen not from abuses of databases but from
fearful populations that sought stronger authorities because the existing
ones did not adequately protect them from violent crime, civil war, and
external enemies. Russians suffering from a breakdown of law and order
welcomed Vladimir Putin. In Egypt, the citizens restored a military regime.
Many Iraqis increasingly yearn for stronger, more authoritarian leadership.
New Yorkers and Angelenos, suffering from high rates of violent crime in
the 1980s, supported police departments that made short order of individ-
ual rights, as well as the commissioners and mayors who appointed them.
After 9/11, a majority of Americans favored adopting more limited inter-
pretations of the Constitution in order to protect the nation from further
attacks. 118
All this suggests that a doctrine concerned with protecting privacy
should allow for sufficient security—and other public goods, such as pub-
lic health in the face of a pandemic—and should permit the collection and
cybernation of the data necessary to do so, so long as the usages of this
data are properly supervised and curbed. Prohibiting all collection is not
the answer.

C. In Conclusion

The prevailing privacy doctrines—of which this chapter has discussed
two—reflect concepts suitable to the paper age, in which the main issue
was whether primary collection of information unduly intruded on indi-
viduals’ privacy. Such intrusions required court authorization in line with
the Fourth Amendment. This chapter has argued that, since the advent
of the cyber age, many more risks to privacy emanate from the second-
ary usages of personal information—regardless of how it is collected. No
prevailing privacy doctrine of which I am aware addresses this pressing
issue. The notions of a “reasonable expectation of privacy” and afford-
ing special status to the home are obsolete. The CAPD would take into
account the risks to privacy posed by the collection of high volumes of
information of high sensitivity, paying particular attention to the extent
to which the information is cybernated—processed, analyzed, and shared.
The CAPD would also consider the degree to which various accountability
mechanisms impose limitations on cybernation. This analysis has focused
exclusively on one of the two core elements of a liberal communitarian
philosophy—namely, the effects on the right to privacy, holding constant