In more than one forum over the last couple of years I have made the claim that the concept of privacy has the potential to become a central organizing principle for politics in the twenty-first century. I venture this idea based on the following three thoughts. As a concept, it is as old as it is nebulous in civic life throughout Western society and therefore stands the test of time as an enduring political quality while not having been so thoroughly exhausted as the eighteenth-century notion of rights might be suspected of becoming as we move forward in this new, global century. Second, on the subject of rights, it intersects both "positive" and "negative" rights. That observation also bodes well for the political future, because Western Europe and the United States are caught in a tug of war on this point and it would do well to find both principles and functions that could serve to adhere the modern, democratic political traditions together. The Marlena Dietrich "I want to be alone" aspect of American "negative" rights (otherwise known as Warren and Brandeis) meet the Declaration of Human Rights and its progeny (most recently the Madrid Declaration) as a quality of experience that citizens not only believe government should stay away from (reproductive rights, for example) but also should affirmatively provide (protection from inappropriate disclosure of personally identifiably information). Third, the principled and functional quality render "privacy" precisely the kind of experience upon which ideals, laws and jurisprudence can develop over time to meet the needs of a political economy.
It is with this kind of thinking as a backdrop that I attended the Privacy Legal Scholars Conference in Berkeley last week. No where in the United States could you find the combined intelligence, talent and passion on the subject of privacy compacted into one hotel! Not being a legal scholar, I felt a tad out of place, but always the curious student I soaked up as much learning as I could and have come away with renewed respect for the authors and commentators who animated the experience. Before getting into a discussion of some of the ideas, I want to add a qualitative observation, and that is the conference also impressed me as a having an open and generous spirit. Papers in the rough were the modus operandi, in contrast to the norm whereby a "finished" product is simply read to an audience. Following the direction of contemporary pedagogy, whereby active over passive learning is preferred, this approach produced lively and thoughtful discussion.
The most important "thing" I learned, and this is in the realm of a news flash, is that the White House is going to offer a brand of "comprehensive privacy standards." These standards will act as a safe harbor for entities holding personally identifiable information -- or, more specifically probably, losing it! -- so long as the entity follows a certain set of procedures. (For DMCA fans, does 512 ring a bell?) The Federal Trade Commission will be in charge of enforcement. This information, translated no doubted imperfectly by me, from the keynote lunchtime address by Daniel J. Weitzner, Deputy Chief Technology Officer In the White House Office of Science and Technology Policy.
If you are already asking questions such as "why 'standards' and not a law?" or "why confined to personally identifiable information" you are in the intellectual pocket of some interesting and on-going discussions in this vital area. Will standards have sufficient teeth? Is the F.T.C. the only or appropriate agency for protecting "privacy"? Will the battle to gain at least some foothold for any privacy protection in the traditionally slippy area of U.S. political landscape, one characterized by robust market interests that tact away in the name of access in contrast to the privacy legal frameworks of most of the developed world, result in a lost war from a quality of experience defined as privacy more broadly?
In the next blog or so I will explore some of these questions. Stay tuned!