Internet Privacy and the State
![handle is hein.journals/conlr32 and id is 831 raw text is: Interet Privacy and the State
PAUL M. SCHWARTZ
INTRODUCTION
Of course you are right about Privacy and Public
Opinion. All law is a dead letter without public
opinion behind it. But law and public opinion in-
teract-and they are both capable of being made.1
Millions of people now engage in daily activities on the Internet, and
under current technical configurations, this behavior generates finely
grained personal data. In the absence of effective limits, legal or other-
wise, on the collection and use of personal information on the Internet, a
new structure of power over individuals is emerging. This state of affairs
has significant implications for democracy in the United States, and, not
surprisingly, has stimulated renewed interest in information privacy?
Yet, the ensuing debate about Internet privacy has employed a deeply
flawed rhetoric. Most policy discussions in this area are based around one
or more of the following sets of alternatives. First, we are asked to con-
sider whether our policies for cyberspace should depend on the market or
* Professor of Law, Brooklyn Law School Research for this Article was made possible by the
Dean's Research Fund of Brooklyn Lav School I wish to thank Dean Joan lVexler for this generous
support and her enthusiasm for this project This Article berefitted from the suggestions of Robert
Gellman, Ted Janger, Joel 1. Reidenber&g Laura J Sch=rt Spiros Simitfi Peter Spiro, Wlliam M.
Treanor, Spencer W. Waller, Benjamin H. Jarnke, and David Yassky. Barry Relchran helped me
develop the graphic materiaL I am thankful to these colleagues andfrend for their assistance as I am
to those scholars who have improved my thought by commentary on this Article: Anita L. Allen Fred
H. Cate, Amitai Etzioni, Michael J. Gerhardt, and Lance Llebian. Most of all. Stefanle Schvwrtz
provided essential inspiration.
1. Louis D. Brandeis, Letter of December 28, 1890, in 1 LETrERs OF LouIs D. BRANDEIS 97
(Melvin I. Urofsky & David NV. Levy eds., 1971).
2. For a selection of scholarly works, see FRED H. CATE, PRIVACY IN THE IFORM(ATION AGE 50-
51 (1997); AMITAI EZmONI, THE L ihrS OF PRIVACY (1999); PETER P. SWIRE & ROBERT E. LITAN,
NONE OF YOUR BusNss: WORLD DATA FLows, ELECTRONIC COMERCE, AND THE EUROPEAN
PRIVACY DIRECTIVE at vii (1998); Jerry Kang, Information Privacy In Cyberspace Transactions, 50
STAN. L. REV. 1193, 1198 (1998); Paul M. Schwartz, Privacy and Democracy In Cyberspace, 52
VAND. L. REV. 1609 (1999) [hereinafter Schwartz, Privacy in Cyberspace].](ViewImageLocal?handle=hein.journals/conlr32&div=34&collection=&method=preview&ext=.png&size=3)
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Internet Privacy and the State
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