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26 Hum. Rts. 3 (1999)
Cyberspace Privacy: A Primer and Proposal

handle is hein.journals/huri26 and id is 5 raw text is: A Primer and 9sa By Jerry Kang uman ingenuity has provided us a great gift, cyberspace. This bloom ing network of computing-coin- tmlunication technologies is quickly changing the world and our behavior in it. Already, it has become clich6 to cat- alog cyberspace's striking benefits, its endless possibilities. But great gifts often come with a great price. Congress thinks that the price will be sexual puri- ty due to easy access to pornography. Industry thinks it will be our economy due to easy copying of Hollywood's and Silicon Valley's programs. I worry that it will be our privacy. When I mention privacy, lawyers naturally think of privacy as used in the historic case, Roe v. 4 ade. Others think of the privacy of their own homes and backyards, largely in territorial terms. I use privacy differently. Instead of emphasizing privacy in a decisional or spatial sense, I mean it in an information sense. Information privacy is an individ- ual's clairn to control the terms under which personal information is acquired, disclosed, and used. My thesis is that cyberspace threat- ens information privacy in extraordinary ways, and without much thought or col- lective deliberation, we may be in the process of surrendering our privacy per- manently as we enter the next century. Why Care About Privacy? Some people do not understand what the big deal is about privacy. [hey assume that privacy is important only for those who have something to hide. This view is misguided. Let me articu- late why individuals should enrjoy meaningful control over the acquisi- tion, disclosure, and use of their per- sonal information. Use of personal data. Personal data are often misused. For example, personal data can be used to commit identity theft, in which an impostor creates fake finan- cial accounts, runs up enormous bills, and disappears leaving only a wrecked credit report behind. Personal data, such as home addresses and telephone nuin- bers, can be used to harass and stalk. Personal data, such as one's sexual orien- tation, can be used to deny employment because of unwarranted prejudice. Disclosure of personal data. Some- times, even if such data will not be used against us, its mere disclosure may lead to embarrassment In any culture, certain conditions are embarrassing even when they are not blameworthy. Take impotency for example. In most cases, impotency will not affect whether one receives a job, a loan, or a promotion. In this sense, the data will not be misused in the allocation of rewards and opportuni- ties. However, the mere disclosure of this medical condition would cause intense embarrassment for most men. In addition to causing embarrass- ment, the inability to control the disclo- sure of personal data can hamper the building of intimate relationships. We construct many intimacies not only by sharing experiences but also by sharing secrets about ourselves, details not broadcast to a mass audience. If we have information privacy, we can regu- late the outflow of such private infor- mation to others. By redLcing this flow to a trickle (for example, to your boss), we maintain aloofness; by releasing a more telling stream (for example, to your former college roommate living afar) we invite and affirm intimacy. If anyone could find Out anything about us, secrets would lose their ability to helt) construct intimacy. Acquisition of personal data. Final- ly, consider the fact that personal infor- mation is acquired by observing who we are and what we do. When such observation is nonconsensual and extensive, we have what amounts to surveillance, which is in tension with human dignity. Human beings have dignity because they are moral per- sons ----beings capable of self-determina- tion, with the capacity to reflect upon and choose personal and political pro- jects. Extensive, undesired observation interferes with this exercise of choice bet:ause we act differently when we are being watched. Simply put, surveil- lance leads to self-censorship. When we do not want to be surveilled, it dis- respecIs our dignity to surveil IS nonetheless, unless some important social justification exists. This insult to individual dignity has social ramifica- Winter 1999 Human Rights

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