Page 9 - Privacy in a Cyber Age Policy and Practice

viii PREFACE

to use a piece of information that the user of the information released, they
must first seek and gain that individual’s explicit consent.
In Chapter 2, I ask how the key three dimensions of this new cyber
age privacy doctrine—volume, sensitivity, and cybernation—can be opera-
tionalized. That is, I show that these three core concepts are not abstract
academic notions, but rather concepts that can be readily employed, for
which metrics can be (and in some cases already have been) developed.
Also, I discover that there is a strong positive relationship between over-
sight (or accountability) by government and by civilian bodies and how
much license can safely be accorded to those who collect personal infor-
mation and, above all, those who engage in secondary usages. That is, the
more thorough and trustworthy the oversight, the more license we can
accord to those who collect, process, and apply information to enhance
our security, public safety, and public health.
In reviewing these two chapters, as the book was readied for publi-
cation, I was surprised to realize that I am still influenced—more than
fifty years after I became an American citizen—by what might be called
a “continental” approach. This approach searches for general normative
and legal principles from which to derive specific public policies, court
rulings, and social norms, rather than drawing on an accumulation of
cases or precedents. This is, of course, a major way the European (sans
the United Kingdom) and the Anglo-Saxon ways of thought often dif-
fer from each other. I believe that the reader will agree that, at least in
the study of privacy, the times call for adopting some of the continen-
tal approach to render what others have called the crazy quilt of privacy
laws into a more systematic, consistent whole. We should cease asking
whether or not the authorities should be allowed to use facial recognition
technology, thermal imaging, GPS technology, phone tracking, drones,
and the numerous other new technologies that seem to be springing up at
an accelerated pace. Instead, we should articulate a set of principles that
will apply to all these new devices. This is what Chapters 1 and 2 attempt
to accomplish.
I am not particularly fond of flashbacks. However, in this book I sought
to first put forward a positive case: the case for a privacy doctrine attuned
to the cyber age. Hence, in Chapters 3 and 4 I examine two approaches I
believe should be allowed to fade away if not be discarded outright. Chap-
ter 3 provides what I consider definitive proof that a conception that plays
a major role in American law, the “expectation of privacy” (which draws on
the oft-cited court case Katz v. United States), is untenable and should be
allowed to die, to be replaced by the CAPD presented in Chapters 1 and 2.
Chapter 4 makes the case that focusing privacy protection on what takes
place in the home enables domestic violence, as feminists have long pointed