Page 8 - Privacy in a Cyber Age Policy and Practice

Preface

Technological and economic forces are developing at what seems to be an
accelerating pace, while our normative and political institutions are lagging
ever farther behind. Like the sorcerer who lost command of his apprentice,
like the Golem who got out of hand, we are often more buffeted by these
instrumental developments than we are able to direct them to serve our
higher purposes. We need to regain mastery of our fate, to be in charge
again. In a bygone era, this cardinal challenge of modernity was expressed
by stating that we need to put “man on top again,” though I am far from
sure that he ever was. A much better way to express this idea is to hold that
we should learn to direct history rather than be subjugated by it, governed
by forces we do not understand or control. “Us” is particularly appropri-
ate because there are limits to what we each can accomplish alone; we can
achieve more if we come together as a community, reform our institutions,
and ensure that they reflect our shared values.
This book examines this challenge in one particular arena: privacy. It
is commonplace to hold that technological developments promoted both
by the private sector and by the government have greatly undermined our
ability to exercise the basic human right to privacy. In asking in which ways
we may shore up our right to privacy, I find that we often consider the
challenges posed to privacy by new surveillance technologies, new market-
ing strategies, and social media in moral and legal terms formed before
the dawn of the cyber age. Hence, we focus on whether or not collecting
given categories of personal information should be allowed (the old issue)
rather than on the question of to what use that information is put (the main
new issue). Therefore, the first chapter of this book is devoted to the ques-
tion of what the key terms, concepts, and assumptions of a privacy doc-
trine suitable for the cyber age should be. The suggested cyber age privacy
doctrine (CAPD) is found to favorably compare to the American “third
party doctrine”—which holds that when an individual voluntarily provides
a third party with a piece of information, that third party may share the
information with government officials without a warrant without trigger-
ing a Fourth Amendment violation—and to the European Data Protection
Directive, which, at least at first blush, seems to suggest that if anyone seeks