5 Crit 1 (2012)

handle is hein.journals/tcrit5 and id is 1 raw text is: 1
OUR WALLS IN THE INFORMATION AGE
M. Jos. Capkovic'
INTRODUCTION
What is privacy law? [L]egal theorists and policy makers continue to have little idea just
what our legal conception of 'privacy' is; and to the extent there is a 'law of privacy,' it remains
a piecemeal, poorly understood, and only partially successful body of jurisprudence.2 The
purpose of this note is to evaluate the foundations of United States privacy law and explore
whether our own walls are expanding in the information age.3 It will survey the practices of
commercial data brokers that collect, store, and use individuals' personal information. The
analysis will review current U.S. privacy protections, and examine emerging privacy concerns--
problems of Privacy 2.0.4 Finally, it will explore model solutions advocated by leading
authorities that would serve to protect the privacy of the people of the United States in the
information age.
I. THE FOUNDATION OF U.S. PRIVACY LAW
What is privacy? Is it a universal principle, or a nebulous concept that varies across cultures?
In his article titled The Two Western Cultures of Privacy. Dignity Versus Liberty, James
Whitman casts the notion of privacy as the latter.5 Whitman identifies contemporary concepts of
privacy and how they differ between the U.S. and the European continent stating: The core
continental privacy rights are rights to one's image, name, and reputation, and what Germans call
the right to informational self-determination-the right to control the sorts of information
disclosed about oneself.6 Whitman continues by defining the American right to privacy as
much the form that it took in the eighteenth century: It is the right to freedom from intrusions by
the state, especially in one's own home . . .maintaining a kind of private sovereignty within our
own walls.
American notions of privacy have consistently changed from the drafting of the Bill of
Rights through today. Modem American notions of privacy began with the Bill of Rights. The
Fourth Amendment provides that it is [t]he right of the people to be secure in their persons,
Fall 2011 J.D. Candidate, Regent University School of Law; B.A., Political Science, University of Missouri -
Columbia. M. Jos. Capkovic is a member of the International Association of Privacy Professionals. He wishes to
extend his most sincere gratitude to Professor Rebecca G. Hulse of William & Mary School of Law for her
instruction and insight. His thanks also go to Professor Charles H. Oates, Ramona A. Gau, and to his wife Kelly for
her support.
2 Neil M. Richards, The Information Privacy Law Project, 94 GEO L.J. 1087, 1088 (2006).
See James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J. 1151, 1162
(2004) (identifying the American right to privacy as maintaining a kind of private sovereignty within our own walls.
Whitman is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School).
4 JOIHNATHAN ZITTRAIN, THE FUTURE OF THE INTERNET AND H-OW TO STOP IT (2008), 200 (defining Privacy 2.0).
Whitman, supra note 3, at 1151.
6 Id.
7 Id. (emphasis added as this note reflects upon the concept of our own walls).

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